» Clean Water Current Archive

June 11, 2010

NACWA Efforts on Stormwater Encourages Legislation Requiring Federal Payment of Fees

This week Senator Ben Cardin (D-Md.), Chairman of the Water and Wildlife Subcommittee, introduced legislation that seeks to require that the Federal government pay reasonable fees for clean water services provided by local utilities. The legislation (S. 3481)  clarifies that fees charged for the control and abatement of water pollution, including stormwater management fees, shall not be considered a tax and therefore are required to be paid by the government as outlined in Section 313 of the Clean Water Act.  The issue gained attention in April when the General Services Administration (GSA) delivered a preliminary announcement that Federal facilities in the Washington, D.C. area would not pay a recently enacted stormwater fee as they deemed it a tax.  Following this, NACWA polled its members and found similar occurrences throughout the nation.  NACWA played a critical role in raising the issue and worked closely with Senator Cardin’s office on drafting the legislation.  NACWA is currently seeking the introduction of companion legislation in the House of Representatives.

NACWA Responds to NRDC Letter on Nutrients, Sets Date for Nutrient Summit

NACWA sent Assistant Administrator for Water Pete Silva a letter this week outlining why a one-size-fits-all, technology-based approach to nutrient control would waste limited public resources and result in little or no discernable water quality improvements in many watersheds.  NACWA’s letter responds to an April 21, 2010, letter from the Natural Resources Defense Council (NRDC) and several other environmental groups, that urges the U.S. Environmental Protection Agency (EPA) to grant the November 2007 petition filed by the same groups seeking to modify the definition of secondary treatment to including nutrient removal.  In the letter NACWA addresses the policy, technical, and legal reasons why EPA should deny the petition.  The primary issue raised in NRDC’s April 21, letter was cost – with the organizations asserting that the cost to implement nutrient controls at the Nation’s POTWs is both reasonable and manageable.  NRDC suggests that the expense of upgrading treatment plants is NACWA’s primary reason for objecting to the petition, but NACWA’s letter notes that cost is "neither the most important nor the most compelling reason to deny the petition" and has never been the driving force behind NACWA’s concerns.  NACWA’s letter underscores that even using NRDC’s conservative and "reasonable" cost figures, a national technology-based mandate could cost the clean water community more than $280 billion dollars.  More importantly, however, NACWA notes that such a mandate would not address what NRDC refers to as "failures" of the current programs.  Under a national secondary treatment-based nutrient regime, POTW contributions would be reduced, but many waters would still not meet standards, states would still be slow to develop nutrient goals (and may lose all motivation to develop such goals if the only controllable source is already regulated), and impaired waters would still be overlooked and not listed for TMDL development.  NACWA’s letter states that if "these are the symptoms of the failing system, then we must work to fix the system.  The system needs new approaches that can recognize the unique characteristics of nutrients as a pollutant."

Rather than continuing to rely only on the existing menu of approaches being used under the CWA’s water quality programs, or reverting to a technology-based approach that requires the same level of control regardless of water quality, NACWA believes that "we must consider new and innovative approaches to addressing the unique properties of nutrients as a source of water impairment…all options should be evaluated…but the selection of those approaches must be smart, reasonable, and legally justified."  NACWA’s letter points to its upcoming Summit (see below) on nutrient issues this September as an important step in identifying the new concepts and approaches that will help to improve our management of nutrient pollution.

NACWA Nutrient Summit Set for September 16 & 17

A small workgroup of NACWA members met this week in Washington, D.C. to begin planning for the Association’s Nutrient Summit, now set for September 16 and 17 in Chicago.  The day and a half-long meeting will feature presentations from key stakeholder groups, including agriculture and environmental NGO groups, and discussions of the state and regional approaches to nutrient management from around the country that are working, and may serve a model for others.  The Summit will be a work session, a ‘roll up your sleeves’ meeting, during which a facilitator will seek to reach consensus among the participants on a suite of concepts that the clean water community could take forward and offer up as more scientifically valid, appropriate approaches to addressing nutrient pollution.  More details on the Summit will be provided to the membership later this month.

NACWA Presents Argument before Environmental Appeals Board in Whole Effluent Toxicity Permit Appeal

NACWA participated in oral arguments June 7th before EPA’s Environmental Appeals Board (EAB) in support of a permit appeal by NACWA member agency the San Jacinto River Authority (SJRA) over a discharge permit that was inappropriately federalized by EPA Region VI to include contested whole effluent toxicity (WET) provisions.  The case focuses on EPA’s decision to take over the permit and include WET requirements despite the fact that Texas’s EPA-approved water quality standards did not require WET limits and were also not required in an earlier state-issued permit.  NACWA’s arguments before the EAB focused on the fact that EPA impermissibly changed its position as to the validity of the Texas WET permitting procedures without any explanation or basis, and that EPA improperly sought to substitute its own view of Texas water quality standards in place of the state’s interpretation.  NACWA stressed that while EPA has discretion to veto state issued NPDES permits under the Clean Water Act (CWA) if water quality standards are not met, in the case of SJRA the Agency’s actions were inappropriate because it gave no reasonable and adequate rationale why the original state permit was insufficient.  This position echoed that of SJRA, which argued that the regulated community needs reliance on well settled principles that offer consistency and can be easily followed. The EAB judges seemed receptive to the arguments of NACWA and SJRA and have taken the matter under advisement, with a decision expected in the coming months.  Additional information on the case and copies of NACWA’s filings with the EAB are available on NACWA’s Litigation Tracking webpage.

NACWA Submits Comments on Stormwater ICR, Hosts Municipal Meeting on Stormwater Issues

NACWA had a busy week of stormwater advocacy, submitting comments on June 9 to EPA on a revised version of the Agency’s proposed Information Collection Request (ICR) to stormwater utilities and convening a meeting on June 7 with other municipal organizations to discuss opportunities for collaboration on a number of pressing stormwater issues.  NACWA’s comments on the ICR provide both general and specific suggestions regarding the survey questionnaire and expresses concern with the potentially burdensome nature of the survey on municipal stormwater agencies.   The ICR will take significant time and resources to complete, and NACWA’s comments emphasize that many municipal utilities are suffering from personnel shortages due to the current economic climate, and that these staffing issues will impact the ability of stormwater agencies to respond.

NACWA’s comments suggest a number of ways for EPA to lessen the ICR response burden for utilities, including streamlining the survey form to reduce the amount of time needed to complete it, providing a minimum of 90 days for respondents to complete the form, and remaining flexible in allowing extensions for the submittal of responses on a case-by-case basis when requested by individual agencies.  Additionally, the comments provide suggested wording and technical changes to specific questions on the questionnaire for improved clarity.  This is the second set of comments NACWA has filed on the ICR, having previously commented in December 2009 on the original version of the survey form.  The final version of the ICR is expected to be completed this summer and will be used by EPA to collect information as part of its rulemaking efforts to develop a new national post-construction stormwater rule by November 2012.

In a related development this week, NACWA and the National Association of Flood & Stormwater Management Agencies (NAFSMA) hosted a meeting of key municipal groups to discuss the need for a collaborative advocacy approach on the many emerging stormwater issues facing municipal utilities.  Among the topics covered were EPA’s ongoing stormwater rulemaking effort, the release of more stringent stormwater permits for cities, the refusal of certain federal facilities to pay local stormwater fees, and the need to preserve the "maximum extent practicable" (MEP) standard in stormwater permits and push back against potential numeric effluent limits.  Groups in attendance at the meeting in addition to NACWA and NAFSMA included the American Public Works Association (APWA), the National League of Cities (NLC), the National Association of Counties (NaCO), the Wet Weather Partnership (WWP), the National Governors Association (NGA), and the National Conference of State Legislatures (NCSL).  The discussion was very positive and NACWA looks forward to working with these groups in the coming months to form a municipal coalition that will address stormwater issues.  Another meeting of the group is planned for later this summer.

Senate Rejects Effort to Block EPA’s Greenhouse Gas Rules

The Senate voted 53 to 47 against a resolution offered by Alaska Senator Lisa Murkowski (R) which would have overturned EPA’s endangerment finding under the Clean Air Act (CAA) for greenhouse gas emissions, thus preventing the Agency from going forward and regulating greenhouse gases under the CAA.  To secure the needed Democratic votes to defeat the resolution, an agreement was made that the Senate would vote on a resolution introduced by Senator Jay Rockefeller (D-W.Va.) that would require a two year delay in EPA’s effort to regulate these gases.  The resolution currently has six Democratic co-sponsors and stands a good chance of passing the Senate.  Even if it does pass, enactment is far from certain given that the House would need to act on similar legislation and the President would need to sign it.

The Murkowski vote occurred as Congress returned from recess to begin a summer work period that extends to an August recess with a break for July 4th.   Senate Majority Leader Harry Reid (D-Nev.) has pledged to have a full discussion among the Senate Democratic caucus on whether to consider comprehensive energy and climate legislation this work period.  Senators John Kerry (D-Mass.) and Joe Lieberman (I-Conn.) offered what was intended to be compromise legislation that could attract Republican support for capping greenhouse gas emissions, but thus far, no Republican Senator has signed on to it.  Given the current focus on the BP oil spill, it is unclear whether Congress will take up broader energy legislation other than what is necessary to address the oil spill in the Gulf of Mexico.  NACWA is continuing to monitor develops as they occur and should legislation move forward, ensure that biogas and solids produced in the wastewater treatment process qualify as renewable biomass, as well as ensure adaptation needs at water and wastewater utilities be addressed.

Flow Series Web Seminar Showcases Nexus between Stormwater and Water Quality

Over 150 individuals joined NACWA on June 9 for a web seminar that examined both the water quality impacts created by stormwater, as well as how NACWA is responding to increased regulatory efforts by the EPA to address these water quality issues.  The third installment of NACWA’s Flow Series, Water Quality: The True Impact of Stormwater Runoff, featured Erin Snyder, a water quality expert who has worked closely with municipal stormwater utilities and Kyle Dreyfuss-Wells, Manager of Environmental Programs for the Northeast Ohio Regional Sewer District and Chair of NACWA's Stormwater Management Committee.

Dr. Snyder's presentation began with a review of the major types of chemical contaminants associated with stormwater, including both priority pollutants and contaminants of emerging concern (CEC) such as pharmaceuticals and personal care products. She also addressed some potential sources of CECs, the potential effects of stormwater associated contaminants on human health and the environment, and examined case studies of the investigation of contaminants in stormwater.  Kyle Dreyfuss-Wells discussed the EPA’s current regulatory efforts to address the water quality problems created by urban stormwater and how NACWA is responding, including the Association’s direct engagement with EPA on stormwater issues.

NACWA’s Flow Series web seminars are a key component of the Association’s Wet Weather Advocacy Project.  The increasing number of people participating in these seminars highlights the Association’s role as the leading advocacy organization for clean water and stormwater utilities.  Additional information on the Flow Series, including access to past seminars and registration for future seminars, is available on NACWA’s website.  We encourage you to join us for the final installment of the Flow Series on September 8 which will review the potential legal and regulatory hurdles which must be overcome in order to use green infrastructure to address wet weather flows including stormwater management, combined sewer overflows, and sanitary sewer overflows.