» Clean Water Current Archive

January 15, 2010

NACWA Submits Comments on Proposed EPA Enforcement Priorities for 2011-2013

NACWA submitted comments  Jan. 14 on EPA’s proposed national enforcement and compliance priorities for fiscal years 2011-2013, expressing concern that the EPA Office of Enforcement and Compliance Assurance (OECA) continues to focus on municipal wet weather issues without addressing other sources of water quality impairment.  NACWA also submitted a copy of its December 2009 Enforcement White Paper  requesting that it be considered in the final version of the enforcement priorities for 2011-2013.  NACWA developed comments in response to a Jan. 4 Federal Register notice proposing a number of enforcement priorities for the 2011-2013 period and requesting public input.  Among the proposed priorities is “wet weather municipal infrastructure” including combined sewer overflows (CSOs), sanitary sewer overflows (SSOs), and stormwater.

NACWA’s comments express concern with this approach, stating that “national enforcement priorities for the next three years that place continued emphasis on municipal utilities without addressing other sources of water impairment such as agricultural discharges will fail to achieve any meaningful water quality improvement.”  NACWA also emphasized the message in its white paper that the current “business as usual” approach to clean water enforcement will not work and that a new paradigm focused on a watershed approach, increased federal funding for water infrastructure, and revised federal affordability criteria is needed meet the water quality challenges of the 21st century.  NACWA will continue to advocate aggressively on behalf of its members on enforcement issues and will report to the membership once EPA finalizes the 2011-2013 national enforcement priorities.

Chesapeake Bay Reauthorization Bill on Track for Mark-up after President’s Day Recess

NACWA staff met this week with staff for Sen. Ben Cardin (D-Md.) and the House Transportation and Infrastructure (T&I) Committee to discuss the Chesapeake Clean Water and Ecosystem Restoration Act of 2009 (S. 1816)  and the timing for moving the bill through the Senate and House.  Cardin, the bill’s main sponsor in the Senate, seeks to have the legislation reported out of the Senate Environment and Public Works (EPW) Committee by late February or early March when Congress returns from the President’s Day recess.  The House version of the bill (H.R. 3852), which is very similar to Cardin’s bill, was introduced by Rep. Elijah Cummings (D-Md.).  The House T&I Committee will likely report out a bill soon after the Senate acts on its bill.

If enacted, S. 1816 would significantly change the current Chesapeake Bay Program and dramatically expand both federal and state authorities to clean up the bay and restore it to ecological health.  The legislation could have significant implications for other watershed restoration efforts and serve as a model for future watershed-based legislation.  Much of the legislative proposal would codify elements of EPA’s Draft Strategy for Protecting and Restoring the Chesapeake Bay  released Nov. 9, 2009.

The legislation imposes certain requirements on the six states within the Chesapeake Bay watershed — Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia, and the District of Columbia — that must be met in order for them to continue receiving federal clean water funding.  The goal is to reduce adverse impacts to the bay caused by nitrogen, phosphorus, and sediments — the main pollutants in the bay — by enforcing a watershed-wide total maximum daily load (TMDL) that EPA must approve by Dec. 31.  The six bay states and the District of Columbia would have to develop and implement watershed improvement plans (WIPS) in order to meet TMDL reduction loads by 2025.  The WIPs must contain enforceable measures to control all sources of pollution in the bay including agricultural runoff, stormwater, air deposition, and septic systems.  The bill would authorize grants for states to implement their WIPs and establish monitoring programs.  States that fail to meet their TMDL reduction goals through their WIPs risk losing their clean water funding.  In addition, the legislation requires specific stormwater management measures for all new development, institutes a phosphate ban with some exceptions, and authorizes a review that could lead to additional consumer product restrictions if those products are determined to lead to nutrient impairments in the bay.  The legislation also requires the EPA to establish a nutrient trading program for nitrogen and phosphorus.

At NACWA’s Winter Conference in Austin, the Legislative Policy Committee will discuss the bill and whether NACWA’s potential support or it.  Cardin’s staff has urged the point source community to be as supportive as possible of the legislation given that it is a serious effort to shift focus from controlling only point sources of pollution into the bay to controlling nonpoint sources.  In addition, staff said the bill provides states with the tools to accomplish these objectives.  As part of the discussions with Cardin’s staff, NACWA raised the issue of allowing states to factor in cost-benefit analysis when determining which pollution source to control, which would be allowed under NACWA’s watershed proposal.  The staff members said they were open to the idea of including language on this point.  Please contact This e-mail address is being protected from spambots. You need JavaScript enabled to view it , NACWA legislative director, if you have comments on the bay legislation.

EPA Proposes Nutrient Criteria for Florida; NACWA to Comment

As anticipated, EPA released its proposed nutrient criteria for Florida this week, marking the first time the federal government has acted to impose nutrient water quality criteria for a state.  While the impacts for Florida utilities are anticipated to be significant, the potential precedent this action represents also could have major implications nationwide.  In August 2009, EPA entered into a consent decree with the Florida Wildlife Federation, committing to propose numeric nutrient standards for lakes and flowing waters in Florida by January 2010, and for Florida’s estuarine and coastal waters by January 2011.

The Federation alleged that EPA failed to protect the state’s waters from nutrient impairment and sued to force federal promulgation of the criteria.  Environmental groups in Wisconsin have already expressed their intent to follow the same path to force federal promulgation of nutrient standards in that state, and NACWA believes that the success of the Florida legal challenge could lead other environmental groups around the country to do the same.  While NACWA is still reviewing the proposed criteria for Florida, it is expected that EPA will rely on its much-criticized eco-regional approach to develop at least some of the Florida numbers.  Based on its news release, EPA is also proposing to use a new concept in Florida, a “restoration standard,” that NACWA was briefed on late last year.  While the details of its use in Florida are not yet known, EPA has described the restoration standard as a long-term variance from meeting the water quality standard, allowing for a longer timeframe to improve the quality of impaired waters.  This could help minimize the immediate impacts of the Florida criteria, but NACWA’s analysis is just getting underway.  NACWA’s nutrient working group is reviewing the criteria and will develop comments on the proposal.

NACWA Members Urged to Press Senators for CWSRF Funds in Jobs Bill

NACWA issued its first Advocacy Alert (AA 10-01) last week urging member agencies to contact their senators about including at least $4 billion for the Clean Water State Revolving Fund (CWSRF) when they consider their version of the House-passed Jobs for Main Street Act (HR 2847).  The Senate is expected to take up the legislation designed to create jobs as a way to boost the economy later this month.  Over the course of the week, key Senate staff reported that the package will be a top priority following the negotiations on health care reform and may be considered as early as February.

During the week, NACWA met with Appropriations Committee staff to press for additional water infrastructure funding in the Jobs bill due to the great needs throughout the nation.  NACWA pointed to its estimate of the $17 billion in ready-to-go projects nationwide, based on information supplied by member agencies last year.  NACWA also mentioned a separate survey by the Environmental Council of States (ECOS) showing $56 billion in projects already on state intended use plans (IUPs) after taking into account stimulus funds and FY 2010 appropriations.  NACWA and other members of the Water Infrastructure Network (WIN) also met with Environment and Public Works (EPW) Committee staff to develop a strategy for getting more funding for water infrastructure in the Senate Jobs bill.

Late last fall, the House passed its own jobs-creation package that provided $1 billion for the CWSRF.  While the Senate may use the House bill as a guide, it is possible they may draft an entirely new bill with no guarantee that clean water funding will be included.  For this reason, NACWA urges its member to contact their senators and request their support for at least $4 billion in CWSRF funding as part of the Jobs package (the same amount that was included in the previous stimulus package).  For more information or assistance in reaching out to your senators, please contact NACWA’s This e-mail address is being protected from spambots. You need JavaScript enabled to view it or This e-mail address is being protected from spambots. You need JavaScript enabled to view it at 202-833-2672.

Support for Green Infrastructure Bill Grows in House; NACWA Seeks Senate Action

As legislation promoting the use of green infrastructure technologies to address stormwater gains momentum in the House, NACWA met with Senate staff this week to encourage introduction of a similar bill in the Senate.  NACWA worked with a number of other organizations including the Natural Resources Defense Council (NRDC) and American Rivers to craft the Green Infrastructure for Clean Water Act (H.R. 4202) and has been instrumental in getting it introduced in Congress and garnering further support.  The bill was introduced by Rep. Donna Edwards (D-Md.) in December and now has six cosponsors with a number of additional offices indicating their intent to sign on.  Edwards has expressed confidence that the bill could pass the House this year.

On the Senate side, NACWA and its partner organizations plan more meetings with Senate staff to generate support and expect a bill to be introduced soon.  Additional organizations such as the American Society of Landscape Architects, the Chesapeake Bay Foundation, and the Design-Build Institute of America also support the bill, providing increased momentum.  The legislation, which would establish a grant program to assist communities in developing green infrastructure and create a formal green infrastructure program at EPA,  is one of NACWA’s top legislative priorities, and members will be updated on developments as they occur.

Perciasepe Confirmed as EPA Deputy; NRDC’s Stoner Moves to EPA Water Office

Bob Perciasepe has been confirmed by the Senate to become EPA’s deputy administrator.  His confirmation had been held up for several months by Sen. George Voinovich (R-Ohio), who wanted to pressure EPA into providing greater detail regarding its economic analysis on climate change legislation.  Perciasepe previously served as EPA’s assistant administrator for water early in the Clinton Administration before moving over to head the agency’s Office of Air and Radiation.  After leaving EPA, he became the chief operating officer of the National Audubon Society.  In addition, he was on the Board of Directors of the Clean Water America Alliance, an organization launched by NACWA to pursue a more holistic approach to addressing 21st century challenges relating to wastewater, drinking water, stormwater, and water reuse.

NACWA also recently learned that Nancy Stoner, the co-director of clean water programs at the Natural Resources Defense Council (NRDC), will be moving over to EPA to serve as the deputy assistant administrator in the Office of Water.  Prior to her tenure at NRDC, Stoner worked in EPA’s Office of Enforcement and Compliance Assurance.  She also has worked very closely with NACWA on key initiatives, including the development of a draft policy on blending, which EPA has never finalized, and on the Green Infrastructure for Clean Water Act (H.R. 4202), which was introduced last fall to promote green infrastructure technologies as a way to address stormwater flows and other water quality challenges.  NACWA looks forward to working with both Perciasepe and Stoner on priority clean water issues.

NACWA Raises Concerns with New WET Test Analysis Procedure

NACWA expressed concerns in a letter  this week about a new procedure for evaluating whole effluent toxicity (WET) test results, the test of significant toxicity (TST), that EPA hopes will address some of the criticisms surrounding its WET testing program.  While NACWA continues to have concerns with the entire suite of WET test methods and endpoints, the Association’s primary focus continues to be on the use of chronic, sub-lethal endpoints, where permit compliance or reasonable potential may be more a function of the method itself, than of effluent quality.  The procedures for evaluating WET test results (i.e., hypothesis testing and point estimates) can moderate some of the acknowledged uncertainties in the methods.

As outlined in NACWA’s letter, EPA’s TST approach seems to address some of the issues that arise when using hypothesis testing, but leaves many questions unanswered.  Chief among these unresolved issues, the letter notes, is EPA’s continued reliance on hypothesis testing, while most states, dischargers and even parts of EPA have recognized that point estimates (EC/IC25 calculations) provide a superior approach for evaluating WET test results.  NACWA believes that EPA’s resources would be better utilized improving point estimate approaches given the Agency’s stated preference for them over hypothesis testing, rather than continued work on the TST approach.  There are limitations to using hypothesis tests in the reasonable potential (RP) calculations advocated by EPA that the TST approach or any other concept to refine hypothesis tests cannot adequately address.  The TST approach, while controlling the rate of “toxic sample non-toxic” (false negatives) in WET tests, results in an unacceptably high false positive rate.  Thus, more non-toxic samples are being mistakenly labeled as toxic than under the current procedures — a major issue for permitted dischargers.

In addition to pointing out several other issues raised by the TST approach, NACWA’s letter reiterates the need for EPA to develop comprehensive guidance on the implementation of WET testing requirements in the National Pollutant Discharge Elimination System (NPDES) program.   Major issues remain in dealing with discharges with little or no dilution, unnecessary conservatism in the Technical Support Document for Water Quality-based Toxics Control (TSD) reasonable potential procedures, and in implementing chronic WET requirements in permits.  It is unclear when EPA will officially release the TST guidance for public comment, but NACWA will continue to evaluate the new procedure and weigh in with EPA as needed.

NACWA Flow Series Launches with Web Seminar on Stormwater Management

NACWA’s Flow Series of web seminars kicked off this week with more than 100 people joining us for the presentation on stormwater management techniques.  The seminar, led by Melissa Keeley, a noted stormwater expert from George Washington University, focused on how stormwater utilities can use billing practices to encourage on-site retention of stormwater flows.  Namely, utilities can bill for stormwater on a land parcel basis that charges landowners based on the amount of impervious surface on their property.  Stormwater fees could then be adjusted to reflect the impact of each parcel on stormwater runoff to encourage on-site retention through green infrastructure or low impact development techniques.

Keeley acknowledged that such an approach could meet resistance from ratepayers at first, but emphasized the importance of public education in helping landowners understand the true environmental impacts of stormwater runoff from their property.  The presentation also examined how utilities can build multi-agency support for the use of green infrastructure as a wet weather management technique by highlighting the multiple environmental and social benefits of green infrastructure beyond wet weather issues.  She encouraged stormwater and clean water utilities to partner with other municipal agencies, such as transportation and public health departments to take advantage of the multiple community benefits offered by green infrastructure.

This successful launch of the Flow Series highlights the key role web seminars will play as part of NACWA’s Wet Weather Advocacy Project and further emphasizes the prominent role NACWA continues to play as the leading advocate for clean water utilities, including on stormwater issues.  Information on accessing a recorded copy of this week’s web seminar, as well as information in registration for future Flow Series events, is available on NACWA’s website.  Plan now to join us for the next seminar scheduled for March 10.  It will focus on the impacts of climate change on wet weather and stormwater issues.

NACWA Participates in Water Summit, EPA Officials Emphasize Nutrients, Watersheds

Officers and key staff from eight of the leading water sector organizations, including NACWA, met this week to outline their respective organizations’ top priorities and to hear from high-ranking EPA officials on agency activity.  The discussion focused on seeking fundamental principles around which the water sector could rally, including aligning practices and policies toward a more holistic approach to wastewater, drinking water, stormwater, and reuse.  The Joint Water Sector Concept Paper: The National Water Program at a Crossroads  served as the basis for this discussion.  NACWA pointed out that much of these shared goals could be accomplished under the auspices of the Clean Water America Alliance, which was formed by NACWA for exactly such a purpose.

EPA echoed the theme for a more holistic, watershed-based approach through informative presentations from Robert Sussman, senior policy counsel to EPA Administrator Lisa Jackson; Peter Silva, EPA assistant administrator for water; Jim Hanlon, director of the Office of Wastewater Management; and Cynthia Dougherty, director of the Office of Groundwater and Drinking Water.  They made clear that nutrient control is a top priority, both in terms of ensuring that nutrient criteria are developed at the state level and that a strategy is developed and implemented to curb nutrients in the Chesapeake Bay.  Bob Sussman noted that “as we move more in the direction of watershed protection. . .we need to get out of the syndrome where farmers, construction companies, and POTWs all say it’s not our problem.”  Silva noted as well that “nutrients are the next big issue, including agricultural impacts on water sources.”  Silva said EPA’s efforts continue to be hampered by the fact that the public and even key industry sectors often do not fully understand and appreciate the value of water, noting this is something that would require the focus of all water sector organizations to change.  The discussion re-emphasized the importance of NACWA’s advocacy efforts on nutrient issues, its focus on advancing watershed legislation, and its growing involvement in Chesapeake Bay issues.