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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the November/December 2010 Regulatory Update.  This Update provides a narrative summary of relevant regulatory issues and actions current to December 16, 2010.  Please contact NACWA’s Chris Hornback at 202/833-9106 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it or Cynthia Finley at 202/296-9836 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it with any questions or information on the Update topics.

Top Stories

NACWA Files Extensive Comments, Meets with EPA on Proposed Air Emissions Standards for Sewage Sludge Incinerators as EPA Seeks Extension

NACWA submitted extensive comments on November 29 about the U.S. Environmental Protection Agency’s (EPA) proposed new source performance standards and emission guidelines for sewage sludge incinerators (SSIs).  The comments are the culmination of more than a year’s worth of work by NACWA on the issue of how SSIs should be regulated under the Clean Air Act (CAA).  Since making its preliminary decision that SSIs do combust an EPA-defined “solid waste” last summer, the Agency has maintained an aggressive pace in developing the proposed CAA standards.  NACWA’s comments underscore how this rapid pace has not enabled EPA to fully consider the Association’s legal and technical arguments and has ultimately undermined the validity of the proposed standards.  Recognizing that the Agency would have limited time to respond to the more than 80 comments received on the proposed standards, EPA, in a December 7 filing, requested a six-month extension of the current January 16, 2011 deadline for finalizing the standards.  Though the Sierra Club, which filed the original lawsuits that are now dictating EPA’s rulemaking schedule, opposes the extension, the Agency’s Office of General Counsel has indicated that it is confident the court will extend the deadline until July 15, 2011.  It does not appear that EPA will re-propose the rule, which would be required if major changes were made from the proposal, but NACWA believes the additional time will allow EPA to better evaluate the full range of issues raised during the comment process.

In its comments, NACWA continues to assert that SSIs must be regulated under section 112 of the CAA, not section 129, citing section 112(e)(5) of the CAA that specifically directs EPA to regulate publicly owned treatment works (POTWs) and the SSIs they operate under section 112.  EPA has taken the position that section 112(e)(5) “does not apply to SSI units”.  NACWA’s comments note that EPA has offered “nothing but this bare statement to justify its interpretation” and that the Agency does not explain how it reached such a conclusion given the “integral role SSIs play in the management of sewage sludge, or how SSIs could have been built and improved using CWA [Clean Water Act] Title II [construction grant] funds if they are not part of the CWA definition of ‘treatment works.’”  Most of the flaws in the proposal stem from EPA’s lack of data and its lack of understanding regarding the unique aspects of sewage sludge.  NACWA’s comments strongly criticize the Agency for relying on the public comment process to bolster its database, stating that “EPA has primary responsibility for gathering the data” and that it is inappropriate to “ask NACWA and its members to provide additional stack test data during the 45-day public comment period.  Even if NACWA and its members were able to secure the resources to conduct additional stack testing to supplement the record, EPA offers insufficient time to conduct the stack tests, quality assure the data, and submit it for EPA consideration.”

In the days running up to the close of the public comment period, NACWA also met with Peter Tsirigotis, Director of EPA's Sector Policies & Programs Division, and his staff to discuss the Agency's proposal.  During the November 18 meeting, NACWA noted major flaws in EPA's proposal, including that the Agency's cost assumptions for landfilling may be too low by a factor of three to five and that the rule overestimates the amount of emissions for most SSIs, thereby overstating the benefit of the proposed MACT standard.  NACWA also pointed out that EPA is proposing to require much more stringent reductions for mercury as a result of both dramatically overstated emissions estimates and underestimated control costs.  NACWA’s comments on the proposal provided further details on these concerns and outlined how the proposal should be changed.

While NACWA requested an extension of the comment period, EPA denied that request on November 24.  NACWA has scheduled a meeting for December 20 with Gina McCarthy, Assistant Administrator for the Office of Air and Radiation, as well as key staff from the water and waste offices, to discuss NACWA’s ongoing concerns with the Agency’s proposal.

Biosolids Management

Biosolids Experts Gather in Virginia to Discuss Future Needs, Challenges

NACWA members joined biosolids experts from around the country December 1 and 2 in Alexandria, Virginia to discuss the future of biosolids management.  The dialogue, convened by the National Biosolids Partnership (NBP) and the Water Environment Federation (WEF), sought to gather input from academia, the consulting community, public wastewater agencies, and state and federal government officials on the current trends in biosolids management, the present and future challenges for biosolids management, and the needs of the biosolids community going forward.  Discussions at the dialogue focused on current trends in the regulatory/policy; technology; and, operations/management areas and how these trends might impact the availability and feasibility of management options for biosolids.  Participants also discussed how the NBP can better meet the needs of the clean water community and how its mission may need to evolve to encompass more than its current biosolids environmental management system program.  NBP and WEF will be preparing a summary document from the dialogue that will be distributed to other clean water agencies and biosolids professionals in late January or early February.

Climate Change

Greenhouse Gas Tailoring Rule Takes Effect in January; Clean Water Utilities May Be Affected

The greenhouse gas (GHG) Tailoring Rule, which applies the Clean Air Act (CAA) stationary source permitting programs to emitters of GHGs on an incremental basis, takes effect beginning on January 2, 2011.  For the first six months of 2011, facilities that are already subject to the prevention of significant deterioration (PSD) and Title V provisions of the CAA will also need to apply these provisions to GHG emissions if their emissions exceed 75,000 tons per year (tpy) of carbon dioxide equivalent (CO₂e).  From July 1, 2011 to June 30, 2013, facilities that emit over 100,000 tpy CO₂e will be subject to PSD and Title V requirements.  Although EPA is still determining the requirements that will begin on July 1, 2013, the Agency has guaranteed that no sources emitting less than 50,000 tpy CO₂e will be subject to CAA requirements for GHG before 2016.

NACWA has learned that the Bay Area Air Quality Management District (BAAQMD) has notified the City of Palo Alto Regional Water Quality Control Plant, a NACWA member, that its estimated greenhouse gas emissions exceed one million tpy CO₂e, and at least two other facilities have also received this notification.  While this emissions estimate seems excessive and NACWA is waiting for more information about how this estimate was made, there are no clear guidelines from EPA about how to calculate emissions from publicly owned treatment works (POTWs).  Biogenic emissions are not specifically excluded from Tailoring Rule emissions estimates, although EPA is expected to release further guidance on biogenic emissions later in 2011.  The Tailoring Rule emissions estimates must be based on potential to emit (PTE), not actual emissions, which may make estimates for POTWs much higher than is usually expected.  In addition, there is no clear guidance on which POTW emissions may be considered fugitive emissions and therefore excluded from emissions estimates.

NACWA has talked with EPA about how wastewater process emissions should be calculated, and EPA has stated that utilities should propose their own methodology based on currently accepted practices, which would then need to be approved by the state permitting authority.  This action by the BAAQMD, however, raises concerns that the POTWs will be brought under CAA regulations for GHGs much early than expected, and that the ambiguity of the emissions estimation methodology may be to establish “worst case” emission estimates for POTWs.  NACWA asks that member agencies contact Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it if they have received notification from their air quality regulator that they may be subject to CAA requirements under the Tailoring Rule.  NACWA will keep members informed of developments with the BAAQMD and will be seeking further clarification from EPA on how POTWs should estimate emissions.

EPA Announces Availability of Electronic Greenhouse Gas Reporting Tool

EPA has developed an electronic Greenhouse Gas Reporting tool (e-GGRT) that is now available to support user and facility registration under EPA's Mandatory Greenhouse Gas Reporting Rule.  The tool is available on EPA’s website at https://ghgreporting.epa.gov, and more information is available on a companion e-GGRT support site, http://www.ccdsupport.com, which features online help and frequently asked questions (FAQs).  Facilities with greenhouse gas (GHG) emissions over 25,000 metric tons per year of carbon dioxide equivalent must report their emissions to EPA under the Reporting Rule.  Wastewater utilities must only consider emissions from their stationary combustion sources.  Although must utilities will have emissions under the reporting threshold, some NACWA member utilities have calculated emissions that exceed the threshold and will need to report their emissions.  More information about the Reporting Rule is contained in NACWA’s Advocacy Alert 10-28, and NACWA recommends that all utilities calculate their emissions to determine their status under the Reporting Rule.  Emissions for 2010 must be reported to EPA using e-GGRT by March 31, 2011.  Reporters must use e-GGRT to submit a Certificate of Representation to EPA by January30, 2011, and EPA requires each e-GGRT user to print, sign and mail-in an Electronic Signature Agreement.  Reporters should allow at least ten days for their registrations to be processed by EPA.

NACWA, Water Associations Meet on Climate Change; Provide Recommendations to EPA

NACWA met on November 1 with other water sector associations to discuss current activities related to climate change and water and to formulate strategies for water sector involvement.  The associations discussed the National Climate Assessment, a report to Congress that serves as an update on climate change science and impacts, and how the water sector can provide input to the Assessment.  The associations also discussed how the water sector could benefit from climate change and energy legislation.  Along with NACWA, the Water Environment Federation (WEF), the Water Environment Research Foundation (WERF), the Association of Metropolitan Water Agencies (AMWA), the American Water Works Association (AWWA), the National Rural Water Association (NRWA), the National Association of Water Companies (NAWC), and the Association of California Water Agencies (ACWA) attended the meeting.  The associations plan to meet on a regular basis to discuss these issues and determine when it is appropriate for the water sector to speak as one voice on climate change and energy issues.

These associations participated in a conference call on December 6 with EPA’s Office of Water to discuss the Agency’s upcoming climate change strategy for the Office of Water (OW).  OW originally published its National Water Program Strategy: Response to Climate Change in September 2008.  This document described actions that OW could initiate within two years.  OW is now considering a longer-term strategy focusing on actions for the next three to five years, and is seeking stakeholder input.  The associations recommended that EPA carefully consider the recommendations made in the Climate Ready Water Utilities Working Group report to the National Drinking Water Advisory Council (NDWAC).  NACWA and the other associations were represented on this Working Group, and the Group’s report contains recommendations for how EPA can help utilities adapt to climate change by providing appropriate information and regulatory support.

One major topic of discussion during the call was the potential role of adaptive watershed management in helping utilities to adapt to climate change and how to change regulatory structures to better allow this type of watershed approach.  EPA also asked questions about improving energy efficiency for drinking water and clean water facilities, stating that considering increased greenhouse gas emissions for improved nutrient removal from wastewater was not valid because of the gains in energy efficiency that could be made at treatment plants.  NACWA pointed out the financial considerations involved with both nutrient controls and energy efficiency measures, and noted that some utilities have found that the costs to implement energy efficiency and renewable energy options does not have a sufficient rate of return to justify the investment.  EPA plans to release its draft strategy in June 2011 – and a final strategy in October 2011.  NACWA, through its Climate Change Committee, will review the draft when it is released and submit comments.

Conferences and Meetings

NACWA Winter Conference to Examine Prioritized Infrastructure Investment, Wet and Dry Weather Issues

NACWA’s 2011 Winter Conference, Understanding the New Paradigm for Wet Weather & Collection System Management, will provide an in-depth look at how utilities can best adapt to the substantial changes to wet weather regulations that are on the horizon, and how prioritized investment in infrastructure will become more and more important as new regulatory requirements further strain tight budgets.  Speakers and panelists will also explore creative solutions to the challenges of collection system management – as well as privately-owned systems and laterals – regardless of whether they are located in a wet or arid region.

The conference will be held February 1-4 at the Hyatt Regency Pier Sixty-Six in Ft. Lauderdale, Florida.  Please contact the Hyatt Regency Pier Sixty-Six (954/525-6666) by Monday, January 10, for reservations at the NACWA group rate of $199 per night.  The conference agenda, registration, and other information are available on NACWA’s website at www.nacwa.org/11winter.

Emerging Contaminants

NACWA Meets with EPA about Registration of Nanosilver Products

NACWA met with EPA’s Office of Pesticide Programs (OPP) on November 4 to discuss NACWA’s comments on the conditional registration of a nanosilver active ingredient that will be used as a preservative in textiles.  NACWA is concerned about the lack of available information on the potential impacts of nanosilver that is introduced to the sewer system through consumer product use.  As NACWA pointed out in its comments, two studies have indicated that nanosilver may have different impacts than larger silver particles on the wastewater treatment process, particularly for nitrifying bacteria.  EPA acknowledged these concerns and described how its process for evaluating environmental effects of pesticides is evolving to consider these types of impacts.  EPA also explained its process for collecting data on pesticide registrations and the obligations that the manufacturer of this nanosilver product has to submit additional data on the possible impacts of nanosilver and its potential for leaching out of the textiles.  NACWA will continue to follow the approval process for this product and other proposed pesticide registrations that may affect wastewater treatment processes or have adverse environmental impacts.

Consumer Products Dialogue Call to Focus on Triclosan; NACWA to Review Petition

NACWA continues to focus on the wastewater treatment and environmental impacts of a broad range of consumer products through the National Dialogue on Safe and Sustainable Consumer Products.  Participants in the Dialogue – including NACWA members, EPA staff, and representatives from environmental organizations – held a conference call on November 2 to share information about recent developments regarding consumer products.  The Dialogue’s next call, which will be held in late January, will discuss the most recent research on triclosan and strategies for reducing its use in consumer products.  This call will be organized by Food & Water Watch, whose petition to EPA to further regulate the use of triclosan was published in a December 8 Federal Register notice for public comment.  NACWA’s Pretreatment & Pollution Prevention Committee and Water Quality Committee will review the petition and NACWA will likely submit comments about the petition to EPA.  The comment deadline is February 7, 2011.

The Consumer Products Dialogue participants communicate through an email list and by conference calls that are held every other month. NACWA members interested in participating in the Dialogue should contact Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Facilities and Collection Systems

NACWA, Regional Members Discuss Regulatory Challenges at Kansas City Summit

NACWA staff participated November 9 in the second annual Clean Water Summit in Kansas City, Missouri.  Clean water agencies from Kansas, Nebraska, Iowa, and Missouri gathered to discuss critical clean water issues facing their utilities.  Among their top concerns were challenges associated with wet weather management, including consent decrees and an uncertain permitting environment on the issue of peak flows blending.  NACWA provided updates on key legislative and regulatory issues from the past year, as well as a glimpse at what the 112th Congress and EPA will likely focus on in the coming year.  EPA’s forthcoming decision on whether to pursue a new sanitary sewer overflow rule, its work to revamp the national regulatory framework for stormwater, pending rules on sewage sludge incinerator emissions, and numerous activities on nutrients suggest that the regulatory arena will continue to be very active into 2011.

Summit participants consistently reported that their utilities are being pressed to the limits of affordability for wet weather-related programs, and challenges like nutrient controls, new disinfection requirements, and impacts on sewage sludge incineration will further strain their budgets.  EPA Region 7, which encompasses all of the states that participated in the Summit, has been the focus of significant attention on the wet weather front.  NACWA renewed its commitment to challenge EPA’s actions on the blending issue at the appropriate time and noted that other regulatory issues, including the new Clean Air Act standards for sewage sludge incinerators and the EPA-developed nutrient criteria for Florida, would also likely require NACWA legal involvement.  With Clean Water Act-related decisions increasingly being made at the state and local level, NACWA also stressed that regional meetings like the Clean Water Summit, as well as broader collaboration among state, regional, and national organizations, will continue to play an important role in ensuring that the clean water community speaks with one voice on priority issues.

NPDES Permitting

EPA Directs Regions, States to Focus on Increased NPDES Program Integration & Oversight

EPA’s Office of Water and its Office of Enforcement & Compliance Assurance (OECA) have recently communicated with all EPA regions and the states to encourage a greater integration of National Pollutant Discharge Elimination System (NPDES) program permitting and enforcement activities, as well as increased oversight of state enforcement programs where necessary.  A recent memorandum from EPA Headquarters to all regional offices emphasizes the need for additional integration of both permitting and enforcement activities in order to “more holistically identify and address significant state performance issues that might pose barriers to the protection of water quality.”  The memo discusses the need to write NPDES permits in a way that makes them more enforceable at the state level, and encourages EPA regional offices to exercise greater oversight of state NPDES programs where necessary to ensure that permitting and enforcement actions are being carried out appropriately.  The memo was then followed by a letter from EPA to the states inviting them to work with the Agency on better integration of “NPDES permitting and enforcement efforts at the federal and state levels in order to more effectively address pollution and noncompliance affecting water quality.”

These two documents are part of a continued emphasis from EPA over recent months to increase federal oversight of state permitting programs.  In particular, EPA appears concerned that the recent economic recession has lead many states to cut their budgets for environmental protection.  As a result, the Agency is stepping up its oversight of state programs to ensure that enforcement activities are not diminished.  These actions follow the release last year of EPA’s Clean Water Action Plan for enforcement, which also discussed the need for greater integration of permitting and enforcement activities at both the state and federal level.  NACWA submitted comments on the Action Plan and also published an Enforcement White Paper , which argued that a continued “business as usual” emphasis on enforcement actions against point source dischargers will not successfully address the nation’s growing water problems.  NACWA maintains this position and is opposed to EPA efforts to crack down on state enforcement programs unnecessarily.  NACWA will continue to convey its concerns regarding enforcement issues to EPA, and will also discuss the issue with the Association of State & Interstate Water Pollution Control Administrators (ASIWPCA), which has expressed reservations about EPA’s recent approach.  NACWA will keep the membership updated on developments related to NPDES permit oversight and enforcement activity.

EPA Releases Beta Version of Web-based DMR Pollutant Loading Tool

EPA has released a beta version of a new online tool for accessing wastewater pollutant discharge information.  EPA is seeking comment on how to improve this tool and on the accuracy of the discharge monitoring data supporting it.  The Discharge Monitoring Report (DMR) Pollutant Loading Tool is designed to identify the amount, type, and location of wastewater pollutant discharges and the identity of the discharger.  The tool calculates pollutant loadings from permit and DMR data from EPA’s Permit Compliance System (PCS) and Integrated Compliance Information System for the National Pollutant Discharge Elimination System (ICIS-NPDES).  The tool ranks dischargers, industries, and watersheds based on pollutant mass and toxicity, and presents “top ten” lists to help determine which discharges are important, which facilities and industries are producing these discharges, and which watersheds are impacted.

EPA designed the tool for two main audiences: members of the general public and technical users, such as NPDES permit writers, watershed modelers, and regulatory agencies.  EPA believes that technical users of the tool can enhance their development of NPDES permit effluent limits, improve their watershed pollution budget plans (TMDLs), and refine their modeling of watersheds.

The tool is currently in a beta-phase, offering data from 2007, and is undergoing continual development and testing.  EPA plans to add data from subsequent years after the public comment period.  EPA will be accepting comments on the new tool through February 4, 2011, and NACWA is setting up a web-based demonstration by EPA to provide its members with an overview of the tool.  Details on the webinar will be forwarded to the membership as soon as they are available.  The beta tool can be accessed on EPA’s website.

Nutrients

EPA Finalizes Florida Nutrient Criteria, NACWA Board Approves Legal Action

EPA published its final numeric nutrient criteria for Florida's lakes and flowing waters on December 6 (75 Fed. Reg. 75762) over the objections of permittees in the state, members of Florida's Congressional delegation, and the state's newly elected Governor.  In finalizing the controversial criteria, EPA unexpectedly announced that it was delaying the effective date of the criteria by 15 months to allow "cities, towns, businesses and other stakeholders as well as the State of Florida a full opportunity to review the standards and develop flexible strategies for implementation while Florida continues to recover from the recent economic crisis."  Concerns remain over how the criteria will be implemented and integrated with existing total maximum daily loads (TMDL), and the potential impacts on the municipal wastewater community.  NACWA, along with many other stakeholders, raised concerns about the criteria this past April in extensive comments filed on EPA's proposal, but the major elements of the final rule are essentially unchanged from the proposal.  Now that the criteria are published in final form, a number of lawsuits challenging the criteria are expected to be filed within the coming weeks by agriculture, industry, and utility groups both within Florida, as well as nationally.  Two lawsuits have already been filed, including one by the state of Florida charging that EPA’s actions are “arbitrary and capricious.”

On November 15, NACWA's Board approved funds from the Association's Targeted Action Fund (TAF) to participate as an amicus curiae, or friend of the court, in a challenge to the rule that is expected to be filed by the Florida Water Environment Association’s Utility Council.  NACWA believes it is critical for the Association to be involved in litigation over the final Florida nutrient criteria, both to support Association members that will be impacted by the new rules, and because of the potential national implications of EPA’s actions.  Once the challenge is filed, NACWA will petition the court to participate in the case as an amicus curiae.   If the court grants approval, NACWA would file a brief, most likely at the summary judgment phase of the case, supporting the position of its Florida members against the criteria but also presenting the perspective of the national municipal clean water community regarding this important issue.  This approach will allow the Florida Utility Council and its members to take the lead on what is essentially a challenge to state criteria, but also allow NACWA to advocate on behalf of its members by presenting an important national voice in a litigation matter that will have nationwide implications.

Pretreatment and Pollution Prevention

NACWA Provides Input to EPA on Dental Amalgam Rule Development

NACWA and leaders of the Association’s Pretreatment & Pollution Prevention Committee and Mercury Workgroup met with EPA on November 22 to discuss the Agency’s plans for a rule requiring the use of dental amalgam separators at dental offices.  The amalgam separators will be required as pretreatment standards, and NACWA expressed its concerns about the potential impact to utility pretreatment programs that may be required to verify compliance for hundreds of dental offices in their service areas.  The use of best management practices (BMPs) rather than numeric limits, as well as the “non-significant categorical industrial user”(NSCIU) provision of the Pretreatment Streamlining Rule, may help reduce the burden on pretreatment programs, but there are still issues that need to be resolved.  For example, utilities will still need appropriate recourse when BMPs are not followed or are not effective.  Not all states have implemented Pretreatment Streamlining yet, and states do not have to adopt the NSCIU provision.  Even for states the use the NSCIU provision, clarification will be needed on the requirements that must be met for dental offices and utilities to use the provision.

EPA plans to propose the rule in October 2011, and finalize it by October 2012.  NACWA will continue to work with EPA on development of this rule and provide the Agency with appropriate input and information from Association members.

NACWA Provides Input on Unused Pharmaceutical Practices

NACWA submitted comments on November 8 on EPA’s draft Best Management Practices (BMPs) for Unused Pharmaceuticals at Health Care Facilities.  EPA developed the BMPs after beginning a detailed study of the health services industry for its Effluent Guidelines Program and finding widespread support – including from NACWA – for BMPs rather than effluent guidelines.  The BMPs describe methods that health care facilities can use to reduce the amount of pharmaceutical waste and the appropriate methods of disposal for various types of drugs.  NACWA recommended that EPA “take a stronger position in the BMPs to eliminate down-the-drain disposal of unused pharmaceuticals” and provided a list of recommended revisions to the text of the BMPs to achieve this.  NACWA also recommended that EPA indicate in the BMPs that incineration is the preferred disposal method for unused pharmaceuticals, rather than disposal in a solid waste landfill.  Such an indication would help ensure a reduction in pharmaceuticals that have been found in landfill leachate, which is often sent to wastewater treatment plants.  NACWA suggested that EPA make the BMPs as user-friendly as possible, and that the Agency provide the BMPs and outreach materials to wastewater utilities to enable them to work with health care facilities in their service areas on establishing proper unused pharmaceutical disposal practices.

Stormwater Management

EPA Releases Controversial Memo on Stormwater TMDLs and Permits, NACWA to Respond

EPA recently issued a memorandum to state and federal clean water authorities calling for a change in the way total maximum daily load (TMDL) wasteload allocations (WLAs) are established for stormwater discharges and calling for the inclusion of numeric effluent limits in municipal stormwater permits.  The memo, which updates a previous 2002 directive from EPA regarding TMDL WLAs for stormwater, has prompted significant concern in the municipal stormwater community, and NACWA is currently evaluating a number of possible responses on behalf of its members.   The memo directs TMDL authorities to create more “useful” WLAs for stormwater discharges that take into account the true impact of stormwater on water quality.  It also suggests that TMDL writers should use surrogate parameters such as stormwater flow volume or impervious cover when developing WLAs for stormwater.

Additionally, the memo directs municipal separate storm sewer system (MS4) permit writers to include numeric water quality-based effluent limitations (WQBELs) in NPDES permits for stormwater discharges using numeric parameters such as pollutant concentrations, pollutant loads, or numeric parameters acting as surrogates for pollutants, such as stormwater flow volume or percentage of impervious surface cover.  The memo also strongly suggests that WQBELs for MS4 discharges in the form of best management practices (BMP) may no longer be appropriate in certain circumstances.  Taken together with other recent documents published by EPA regarding stormwater permitting, as well as recent draft permits issued by the Agency, this memo provides additional evidence that EPA is moving away from a traditional BMP approach to stormwater management and towards the use of numeric effluent limits and aggressive green infrastructure/low impact development requirements in stormwater permits.

NACWA has significant concerns with the memo, including the fact that it ignores over ten years of case law clearly establishing the fact that numeric effluent limits are not required for stormwater permits under the Clean Water Act.  The memo also distorts the U.S. Ninth Circuit Court of Appeal’s seminal decision in Defenders of Wildlife v. Browner regarding the requirements for MS4 permits and misinterprets the clear language of Section 402(p) of the Clean Water Act with regard to the required controls in MS4 permits.  Additionally, NACWA is concerned with the manner in which the memo was developed and released by EPA without any consultation with the states or the regulated community.  NACWA asked EPA about the memo during a December 9 consultation (see story below), and NACWA’s Stormwater Management Committee will be holding a conference call on December 17 to discuss the memo and an appropriate response.

NACWA Meets with EPA Officials on Stormwater Rule

NACWA met with key EPA staff on November 8 to discuss the current status of the Agency’s efforts to develop a new national stormwater rule and how NACWA can best provide additional information for consideration during the rulemaking process.  EPA staff indicated that they are currently in the process of reviewing the significant amount of data collected from the Information Collection Request (ICR) questionnaire distributed to municipal stormwater utilities over the summer, and will be using the information from the ICR responses to help guide the rule development.  Agency staff also stated that they are currently considering a wide range of potential requirements to include in the rule and are particularly focused on determining what kinds of new development and redevelopment performance standards would be appropriate for a national rule, as well as how to address the potential for retrofit requirements.

No decisions have been made yet as to which components the rule will or will not include, and EPA expressed significant interest in hearing more from NACWA and the municipal stormwater community regarding suggestions and concerns about the rulemaking process.  The Association is committed to a continued dialogue with EPA over the coming months to ensure that the municipal stormwater perspective is strongly represented during the rulemaking process.

On December 9, NACWA participated with a number of other municipal and state organizations in an invitation-only federalism consultation held by EPA to discuss the new stormwater rule.  During the consultation, EPA discussed many of the options currently under consideration for the new stormwater rule including an expansion of the areas subject to federal municipal separate storm sewer system (MS4) permits; the inclusion of performance standards for new development or redevelopment for onsite retention of stormwater using green infrastructure or low impact development techniques; and the possibility of retrofit requirements for areas of existing impervious surface.

During the meeting, NACWA asked the Agency about itsNovember 12 memo regarding numeric limits in stormwater permits – and how the memo was related to the rulemaking effort.  EPA staff responded by saying that the stormwater rule under development is not expected to include numeric end-of-pipe limits or numeric pollutant concentration limits, but may contain numeric performance standards for new development or redevelopment standards to achieve on-site retention of stormwater.  Additionally, with regard to the potential for retrofits, EPA indicated that it was aware of the significant cost of retrofits to municipalities and that any retrofit requirement would likely include the ability to implement retrofits over an extended compliance period to take into account cost considerations.  NACWA will be following up with additional written comments, providing further considerations for the stormwater rule as a result of the federalism consultation.

Additional information regarding the development of the stormwater rule is available on EPA’s website; further information on NACWA’s advocacy efforts regarding the rule is available on the Association’s Stormwater Management webpage.

NACWA Submits Comments on Chesapeake Bay-Specific Stormwater Provisions

NACWA submitted comments on December 7 in response to EPA’s request for stakeholder input on potential Chesapeake Bay-specific provisions to be included in the new national stormwater rule.  The Association’s comments express concern with many of the considerations put forth by EPA for tighter regulations on stormwater discharges within the Bay watershed, noting that many of the municipalities which would be directly impacted by the new regulations are already struggling with significant affordability concerns to meet existing Clean Water Act mandates – and the forthcoming Chesapeake Bay total maximum daily load (TMDL).  This is particularly true if there is an aggressive requirement for retrofits in urban areas of existing stormwater control measures.  NACWA’s comments expressed significant concern with the potential for substantial retrofit requirements at a time of severe economic distress for municipalities.

The Association supported EPA’s consideration of environmental justice (EJ) issues as part of the stormwater rulemaking effort, but noted that many of the low-income communities identified as a focus of EJ efforts are also the ones least able to absorb the significant rate increases that will likely come with the new stormwater regulations.  NACWA will continue to be an active advocate on behalf of its members during the rulemaking process and will report on any developments.

Water Quality

EPA Issues Guidance on Application of TMDLs to Ocean Acidification

On November 15, EPA issued a memorandum outlining how states should address the issue of ocean acidification in their listing of waters that do not meet water quality standards.  EPA was sued several years ago by environmental groups arguing that EPA and the states should include waters impaired by ocean acidification on their 303(d) lists.  EPA settled the lawsuit by agreeing to make a decision on how ocean acidification should be considered in the TMDL program.  A draft approach was issued by EPA in March 2010, and NACWA submitted comments on May 21.  NACWA stated in its comments that the current scientific understanding of ocean acidification is limited and that “further research is required before regulatory decisions are made regarding pH changes in ocean waters and the potential impacts of ocean acidification.”  NACWA argued that if regulatory action is taken for ocean acidification, the Clean Water Act (CWA) is not the appropriate tool.  The global nature of excess atmospheric carbon dioxide that may be causing ocean acidification demands a more integrated approach than what the more traditional and limited TMDL program under the CWA can provide.

Despite NACWA’s objections, and those raised by other groups, EPA’s memorandum states that “EPA has concluded that States should list waters not meeting water quality standards, including marine pH WQC [water quality criteria], on their 2012 303(d) lists, and should also solicit existing and readily available information on OA [ocean acidification] using the current 303(d) listing program framework.”  EPA goes on to state that the memo does not elevate “in priority the assessment and listing of waters for” ocean acidification, but recognizes that waters should be listed for ocean acidification when data are available.  The memo also recognizes that there is very limited data on the issue at the state level and that this may result in few if any listings initially.  However, NACWA members in California are expressing concern over the potential impact in that state where regulators may be more inclined to list for acidification.  Once waters are listed, however, states will likely struggle to address the sources of the impairment given the global nature of ocean acidification.  EPA indicates in the memo that it will revisit the issue as more information about acidification is developed, and NACWA will continue to track the Agency’s efforts.

EPA to Brief NACWA on Aquatic Life Common Effects Methodology

NACWA attended a briefing December 1 hosted by EPA on the effort by the Office of Water (OW) and Office of Pesticide Programs (OPP) to develop a consistent methodology for both offices to use to determine the effects of pesticides on aquatic plants and animals.  The goal of the methodology is to provide a common basis for achieving the water quality protection goals of the Clean Water Act (CWA) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).   The common effects characterization methodology will apply to situations where the available data for pesticides are adequate for OPP use, but insufficient for developing ambient water quality criteria according to OW guidelines.  The briefing focused on three white papers (available on EPA’s website) that explain the potential tools and methods that EPA will evaluate for predicting and characterizing pesticide effects on aquatic plants and animals.

Since NACWA is concerned about how the proposed methodology will be used to develop water quality standards, EPA has agreed to give an additional briefing for NACWA.  This briefing will provide an opportunity for NACWA to ask questions and receive clarification about EPA’s plans for this methodology, and it will be held before the January 15 deadline for written comments on the white papers.  NACWA will notify members about the results of the briefing after it occurs.

NACWA Comments on Proposed Chesapeake Bay TMDL

NACWA submitted comments on November 8 on EPA’s draft total maximum daily load (TMDL) for the Chesapeake Bay that expressed concerns about the science and regulatory instability involved with the TMDL and EPA’s requirements for load reductions from publicly owned treatment works (POTWs) and municipal separate stormwater sewer systems (MS4s).  The TMDL is based on complex models of the Bay and its sources of nutrient and sediment loadings.  NACWA asserted in its comments that “EPA has not provided the public with a thorough explanation of how the models work, the degree of reliability associated with the model output, and how the model’s limitations impact the TMDL.” The 45-day comment period was also not enough time for public review of the models and draft TMDL and EPA’s self-imposed deadline of December 31, 2010 for finalizing the TMDL will not allow the Agency enough time to consider all of the public comments and make revisions to the TMDL.

The TMDL requires that states provide EPA with “reasonable assurance” in their Watershed Implementation Plans (WIPs) that nonpoint source loading reductions will be achieved.  NACWA argued that “reasonable assurance” is not a concept from the Clean Water Act (CWA) or EPA regulations and the Agency must acknowledge that the states have the lead on TMDL implementation.  EPA’s expectations should better reflect the legal and political realities of the states and the Agency must give them enough time to develop the programs and legislation needed to establish and implement appropriate controls on all sources of pollution.

To achieve “reasonable assurance,” EPA has tightened  load allocations for point sources and threatens to continue to do so if states do not implement their WIPs or meet two-year milestones, creating regulatory instability for POTWs and MS4s.  EPA’s own analysis of nutrient sources shows that agriculture accounts for approximately 44 percent of the nitrogen and phosphorus loads to the Bay and 65 percent of sediment loads, while air sources account for one-third of the nitrogen loads.  NACWA argued in its comments that “neglecting proportionate controls on nonpoint sources while requiring continued reductions from POTWs and MS4s will place an unfair burden on municipal dischargers and result in a major waste of increasingly limited municipal resources,” and that controlling nonpoint sources would be much more cost-effective.

EPA is expected to finalize the Bay TMDL by the end of this year, and NACWA will inform members about new developments.

NACWA Participates in First Meeting of EPA’s Science Advisory Board on Florida Criteria Methodology

NACWA participated December 13 and 14 in the first meeting of EPA’s Science Advisory Board (SAB) panel tasked with reviewing the Agency’s technical support document on development of numeric nutrient criteria for Florida's estuarine and coastal waters, and southern canals.  In its comments on EPA’s proposed numeric nutrient criteria for flowing waters and lakes (January 26, 2010 75 Fed. Reg. 4174), NACWA urged the Agency to seek review of its proposed approach in Florida, in particular its methodology for developing downstream protection values (DPVs) in the state.  That methodology is among several issues the SAB panel began reviewing at its meeting in Washington, DC.  The controversial criteria EPA recently finalized (see related story) for Florida’s flowing waters and lakes are not part of the SAB review.  The SAB panel’s discussions were mostly technical in nature, though some more general concerns were raised over EPA’s proposed use of certain modeling tools to develop DPVs for estuaries, which ultimately will impact the flowing water criteria that were recently finalized, and EPA’s continued reliance on criteria derivation approaches that are not sufficiently linked to impacts on designated uses.  The panel appeared split on the value and appropriateness of developing DPVs, expressing concern that some of the decisions used in parsing out loads in the DPV process would be better done at the local level.  The panel also expressed concern about what the ultimate goals are for some Florida waters, particularly those that have been significantly impacted by human alterations such as the South Florida canal system, and how EPA plans to determine when waters would be considered restored.  EPA is asking for a final report from the panel by the end of February 2011 to ensure it has time to consider the panel’s input and meet its November 2011 deadline for proposing the next round of numeric nutrient criteria for Florida.

Watershed-Based Solutions

NACWA Receives Key Groups’ Endorsements of Watershed Principles

The watershed approach to protecting and restoring the nation’s waters that has been promoted by NACWA’s Strategic Watershed Task Force is now formally supported by other organizations.  A document listing 12 principles to guide future legislation and policies, Principles for a Viable Watershed Approach , has received endorsement by the Water Environment Federation (WEF), the Natural Resources Defense Council (NRDC), the Association of State & Interstate Water Pollution Control Administrators (ASIWPCA), and the Environmental Law & Policy Center.  Endorsements from several other groups that participated in formulating the principles are expected soon.  The principles grew out of facilitated discussions with stakeholder groups on the NACWA- drafted 21st Century Watershed Act and constitute a consensus statement on the need to move forward with a new watershed approach.  The principles also form the basis for the groups to jointly seek hearings in Congress on a national watershed approach and then to ensure the introduction of legislation based on the 21st Century Watershed Act in the upcoming 112th Congress.

The Strategic Watershed Task Force held a conference call in November to discuss other groups that should be approached to endorse the principles and the path forward in using the principles to promote watershed legislation.  NACWA members are encouraged to share the principles document with other organizations and to contact Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it with suggestions for other organizations whose endorsements would add strategic value.