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The U.S. Environmental Protection Agency (EPA) forwarded a letter Dec. 8 to the U.S. Conference of Mayors (Mayors) emphasizing the commitment of both EPA and the U.S. Department of Justice (DOJ) in providing flexibility to municipalities addressing combined sewer overflow (CSO) and sanitary sewer overflow (SSO) issues, particularly within the context of wet weather consent decrees.  The letter contains some helpful language that NACWA believes could assist clean water utilities when negotiating with federal and state officials regarding wet weather decrees.  The letter was signed by Cynthia Giles, EPA’s Assistant Administrator for the Office of Enforcement and Compliance Assurance, and was sent in response to a white paper written by the Conference of Mayors to provide municipal recommendations for increased CSO/SSO flexibility in achieving clean water goals.  NACWA made a substantial contribution to the Mayors’ effort on this issue through the Association’s ongoing Money Matters campaign and is pleased to share EPA’s response letter with the membership.

EPA’s letter acknowledges the importance of providing flexibility when considering municipal wet weather consent decrees to address CSOs and SSOs, stating that both “EPA and DOJ agree that there is flexibility under the law and applicable federal policies and guidance to consider the unique circumstances affecting each community.”  The letter goes on to say that EPA and DOJ agree that “limits on a municipality’s ability to raise funds and consideration of the costs of improvement….should be part of the evaluation that DOJ and EPA make in each case when negotiating options for control and appropriate compliance schedules.”  Additionally, the letter clarifies that it is not EPA or DOJ policy to automatically require cities to spend a minimum of two percent of median household income for overflow controls, but instead the policy is to apply a “case-specific approach….as part of our evaluation when considering options and reviewing the selection of control alternatives.”   The language in the letter on financial capability and flexibility could prove helpful to cities that are negotiating new consent decrees or attempting to renegotiate existing decrees with regard to affordability concerns.

The letter also contains some very positive language with regard to the use of green infrastructure, noting that green solutions can “help eliminate CSOs in a cost-effective manner, while simultaneously securing a host of important environmental and community benefits.”  The memo goes on to say that “EPA and DOJ are willing to consider additional flexibility in compliance schedules on a case-by-case basis to allow for adequate time to determine effectiveness of proposed green infrastructure” solutions.    The letter represents a clear endorsement by EPA and DOJ for the use of green solutions in wet weather decrees and NACWA encourages members to use this language when negotiating the inclusion of green infrastructure in consent decrees.

In order to continue the important dialogue started by the Mayors’ options paper and EPA’s response letter, EPA and the Mayors will be forming a workgroup to continue discussing the issues of affordability and flexibility within the context of municipal wet weather consent decrees.  NACWA will be a part of that effort going forward and will continue to use the Association’s Money Matters campaign as a platform to discuss the critical affordability concerns facing the municipal clean water community.  We will keep the membership updated on important developments.