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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the March 2011 Regulatory Update.  This Update provides a narrative summary of relevant regulatory issues and actions current to April 1, 2011.  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

EPA Releases Nutrient Framework Memo, NACWA Finalizes Nutrient Summit Issue Paper

EPA sent its Regional Administrators a memorandum on March 16 outlining the Agency’s commitment to work in partnership with the states on accelerating the reduction of nutrient loadings in the nation’s waters.  The memo, which places “new emphasis on working with states to achieve near-term reductions in nutrient loadings,” outlines the recommended elements of a framework for state management of nutrient pollution.  In the memo transmitting the two-page framework, Acting Assistant Administrator for Water Nancy Stoner notes that while EPA has a “number of regulatory tools at its disposal,” the Agency’s resources can “best be employed by catalyzing and supporting action by states that want to protect their waters” from nitrogen and phosphorus pollution.  Consistent with NACWA’s advocacy on this issue, the memo also states that a one-size-fits-all solution “is neither desirable nor necessary” and that states need room to innovate and respond to local water quality needs.  While the memo does not directly address the Natural Resources Defense Council’s (NRDC) 2007 petition to modify secondary treatment to include nutrient removal, EPA’s statement on the inappropriateness of a one-size-fits-all approach seems to directly call into question the validity of the approach laid out in the NRDC petition.

While the new memo suggests that states have the lead on nutrient issues, EPA was careful to highlight in several places throughout the document that it wants to support those states that are interested and willing to make progress.  Left unsaid is what type of action EPA may consider if it believes a state is not sufficiently motivated or working to address nutrient issues.  Also of note, EPA refers repeatedly to nitrogen and phosphorus pollution, not nutrients, and specifically mentions the need for numeric nutrient criteria for nitrogen and phosphorus.  NACWA and other stakeholders have continued to raise issues about the need for numeric values specifically for nitrogen and phosphorus, preferring instead to focus on response parameters such as dissolved oxygen.  The memo, however, reaffirms EPA’s belief that nitrogen and phosphorus are ‘pollutants’ and must, therefore, be specifically addressed in any numeric criteria.  EPA does, however, suggest it may be willing to discuss applying those criteria in new ways based on information including biological response data, noting that numeric criteria “informed by scientific understanding of the relationship between nutrient loadings and water quality impairment” will be necessary.

Framework Seeks to Prioritize Watersheds, Make Progress
EPA’s framework describes a process for developing watershed-scale plans for targeting adoption of agricultural practices and “other appropriate loading reduction measures,” including point source controls, in areas where they are most needed, all while the states continue their efforts to develop numeric nutrient criteria.  The framework contemplates a new process by which states would prioritize watersheds statewide based on the need for nutrient reductions and then set load reduction goals for those priority watersheds.  In terms of control mechanisms, EPA indicates that states should ensure the effectiveness of point source permits and in partnership with federal and state agriculture partners, NGOs, and other stakeholders, look for opportunities to target nonpoint source controls where they are needed most.  All of this is intended to make progress on nutrient reductions in advance of finalizing numeric nutrient criteria.  In return for making progress in the near-term using this watershed approach, EPA indicates that the timetable for state numeric criteria development “can be a flexible one,” noting in the framework that state plans should contain interim milestones for the criteria development process and that a “reasonable timetable would include developing numeric N [nitrogen] and P [phosphorus] criteria for at least one class of waters within the state…within 3-5 years.”

NACWA Releases Issue Paper on Outcomes from Nutrient Summit
NACWA also released its Nutrient Summit Outcomes and Issue Paper in March via an Advocacy Alert detailing the discussions at the Association’s Nutrient Summit last fall.  NACWA drafted the Issue Paper to help initiate dialogues with key stakeholders on how current approaches to developing and implementing numeric nutrient criteria are hampering efforts to address this priority water quality challenge.  The concepts from the Summit and Issue Paper have already led to important discussions with state regulators and EPA.  The paper underscores the important role that states must play in taking the lead on the nutrient issue and outlines some areas where the clean water community may be willing to work with state regulators to make progress despite uncertainty in the science behind any numeric nutrient criteria.  However, the paper diverges from EPA’s new framework on the issue of criteria development, noting that EPA’s insistence on developing nitrogen and phosphorus criteria for all waters is one of the main reasons why more progress has not been made.  The Issue Paper outlines a series of guiding principles on the key elements of a workable approach to addressing nutrients and provides some recommendations on making additional progress.

Building on preliminary discussions with the Association of State & Interstate Water Pollution Control Administrators (ASIWPCA), NACWA plans to use the Issue Paper to further this dialogue with state regulators and explore ways the clean water community can better engage them in a collaborative fashion.  The paper will also help to continue ongoing discussions with EPA on the need for new approaches.  NACWA will next brief ASIWPCA’s Nutrient Committee on the Issue Paper in mid-April and will be having additional discussions with stakeholders on the Issue Paper and EPA’s new framework in the coming weeks.

Biosolids

NACWA Briefs Members on Final SSI Rule, Organizes Coalition in Support of  Legal Challenge

NACWA met via conference call on March 9 with its public agency members that operate sewage sludge incinerators (SSIs) to discuss two EPA final rules – one outlining maximum achievable control technology (MACT) standards under Clean Air Act (CAA) Section 129 for SSIs, and the other detailing the Agency’s definition of non-hazardous solid waste.  The main purpose of the call was to discuss NACWA’s potential legal challenge to these rules and determine the membership’s support for such an action.  Based on the discussion, there remains broad support to move forward with such a challenge.  NACWA's Executive Committee subsequently confirmed the Association’s strategy for challenging the rules, and NACWA has now begun work to form the Sewage Sludge Incineration Advocacy Coalition (SSIAC), comprised of member and non-member utilities that operate SSIs.  Now that EPA has published the final rules (see related story), NACWA has until May 20, 2011 to prepare and file its challenges to both rules.

All utilities that have permitted SSI units have received a letter and information packet in the mail in mid-March outlining the Association’s planned advocacy efforts on this important issue and inviting them to support the efforts by participating in the SSIAC.  The SSIAC will provide critical financial and technical support to the Association, allowing it to represent the interests of all impacted utilities in challenging the final SSI regulations.  NACWA SSI members were asked to review the letter and information, and confirm their plans to participate in the SSIAC by April 1 if possible.  Anyone with questions about the SSIAC or NACWA’s planned advocacy efforts should contact Nathan Gardner-Andrews ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it ) or Chris Hornback ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it ).  We will keep the membership updated on developments as the work of the SSIAC proceeds.

Final SSI Rule, Definition of Solid Waste Rule Published; NACWA Preparing Analysis

EPA published its final maximum achievable control technology (MACT) standards for sewage sludge incinerators (Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Sewage Sludge Incineration (SSI) Units; 76 Fed. Reg. 15372) and its final definition of non-hazardous solid waste rule (Identification of Non-Hazardous Secondary Materials That Are Solid Waste; 76 Fed. Reg. 15456) on March 21, 2011.  NACWA has been reviewing pre-publication versions of both rules since they were released on February 21, and is preparing Advocacy Alerts on both rules to outline the implications for the membership.  These alerts will be released in early April.  Publication of the rules begins the 60-day clock for filing any challenges, so NACWA’s SSIAC (see related story) will have until May 20, 2011 to file its challenges of both rules.

Climate Change

EPA Sets New September 30 Deadline for Reporting Greenhouse Gas Emissions

In a March 18 Federal Register notice , EPA announced the new deadline of September 30, 2011, for reporting 2010 greenhouse gas (GHG) emissions as required by the Mandatory GHG Reporting Rule.  Under the Reporting Rule, facilities emitting more than 25,000 metric tons of carbon dioxide equivalent per year must submit annual reports to EPA.  Emissions from wastewater treatment process are exempt from the Rule, but utilities must consider their emissions from combustion of fossil fuels in stationary combustion units.  NACWA’s Advocacy Alert 10-28 provides additional guidance on POTW responsibilities under the Reporting Rule, and the Association recommends that all members calculate their GHG emissions to determine whether they are near the threshold for required reporting.

NACWA Asks EPA to Revise Report on Biogenic Greenhouse Gas Emissions

NACWA submitted comments on March 10 to EPA about a December 14 report , Greenhouse Gas Emissions Estimation Methodologies for Biogenic Emissions from Selected Source Categories: Solid Waste Disposal, Wastewater Treatment, Ethanol Fermentation, which was written for EPA by the Research Triangle Institute.  The report attempts to provide technical guidance on how to calculate wastewater treatment greenhouse gas (GHG) emissions, and was apparently posted on EPA’s website without expert or public review.  Although EPA has announced that it will exempt biogenic emissions from Clean Air Act (CAA) permitting requirements for three years while it continues to study these emissions (see story below), state permitting and reporting programs may still include biogenic emissions.  This report will likely be the only guidance from EPA on biogenic emissions during this three-year period, and NACWA is concerned that it does not characterize biogenic GHG emissions appropriately, leading to “inflated and misleading emissions estimates for wastewater treatment.”

NACWA asked that EPA remove the report from its website while it considers revisions to the document and that the Agency clarify how and when the report should be used for estimating emissions.  A statement at the beginning of the report explained that it does not represent official EPA policy or standards, does not establish requirements to use the report’s methods under CAA programs, and does not differentiate fugitive emissions for air permitting requirements.  NACWA requested that EPA repeat this statement at the beginning of each chapter, since the chapters will likely be looked at individually by the public and regulators.  NACWA also asked that EPA consider the influence of primary treatment on carbon dioxide and methane emissions, since most facilities that digest waste activated sludge also digest their primary sludge.  Finally, NACWA recommended that EPA revise the report’s recommendations for nitrous oxide emissions, which rely on an ongoing Water Environment Research Foundation (WERF) research project that will not be completed until next year.  NACWA will follow up with EPA about revisions to this report and try to work with the Agency on more appropriate guidance for biogenic emissions from wastewater treatment.

EPA Defers Biogenic Emissions from Clean Air Act Requirements for Three Years

In a March 21 Federal Register notice , EPA published its proposed rule to defer biogenic sources of greenhouse gas (GHG) emissions from the Clean Air Act (CAA) Prevention of Significant Deterioration (PSD) and Title V programs.  The deferral applies only to carbon dioxide emissions, and not to methane or nitrous oxide emissions resulting from the combustion of biomass or biogas.  The proposed rule explains the steps that EPA is taking to address biogenic emissions from stationary sources, which include proposing the deferral rule and granting a Petition for Reconsideration related to the Greenhouse Gas Tailoring Rule – the rule that established the GHG thresholds for CAA regulatory requirements.  EPA will also be conducting a detailed study of the science associated with biogenic emissions and using this study to develop a rulemaking on how biogenic emissions should be treated in PSD and Title V permitting.

The proposed rule specifically defers emissions from “combustion of biogas collected from biological decomposition of waste in … wastewater treatment or manure management processes” and from “combustion of the biological fraction of ... biosolids.”  The proposed rule recognizes the combustion of biomass and biogas for energy production reduces overall GHG emissions, and that subjecting these emissions to permitting could discourage their use.  The proposed rule also includes a reminder that state regulatory programs may still apply their PSD and Title V programs to biogenic GHG emissions.

NACWA and its Climate Change Committee and Air Quality Workgroup will review the rule and provide comments by the May 5 deadline.  Please provide any input for use in the comments to Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it by April 28.

NACWA Recommends Revisions to Greenhouse Gas Inventory

NACWA submitted comments on March 25 to EPA regarding the Agency’s Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2009.  The annual inventory provides nationwide estimates of greenhouse gas (GHG) emissions for various sectors, including wastewater treatment, and is intended to be used only for informational purposes.  The wastewater treatment category in the Inventory includes centralized municipal wastewater treatment, septic systems, and industrial wastewater treatment systems, and consistently ranks in the top ten sectors for emissions of methane and nitrous oxide, although wastewater emissions are much smaller in magnitude than for the highest ranked categories.

EPA made a few minor changes to the Inventory this year in response to NACWA’s previous comments.  A breakdown of methane emissions from septic systems versus centralized treatment is now provided, showing that 82.5 percent of methane emissions from domestic wastewater are from septic systems.  Corrections were also made to the equations used for calculating nitrous oxide emissions.  No major changes were made to the methodology used in these equations, however, as NACWA has recommended for several years.  The nitrous oxide emissions are determined through nitrogen loading values to publicly owned treatment works (POTWs), and NACWA believes that the loading value used by EPA is too high.  In the past, NACWA has provided EPA with a literature review of nitrogen loading values to POTWs and has verified these literature values with a survey of 48 POTWs throughout the United States, but EPA has deemed this insufficient to change their values.  NACWA’s comments this year reiterated that there is ample evidence in the literature to support lower nitrogen loading values and urges EPA to conduct its own study to develop more accurate nitrogen loading rates.  NACWA also reminded EPA that with GHGs now regulated under the Clean Air Act, it is especially important that emissions be characterized correctly and that the Agency is consistent in using the Inventory for information only, and not for determining regulatory compliance.

Conferences and Meetings

Registration Open for National Environmental Policy Forum

NACWA’s 2011 National Environmental Policy Forum, May 8-11, at the Westin Washington DC City Center, will provide an unparalleled opportunity for members of the clean water community to dig deeper into the latest federal legislative, regulatory, and legal developments.  Compelling speakers and consecutive, rather than concurrent, committee meetings will ensure that each attendee comes away with the maximum amount of information on issues related to clean water utilities.  As in previous years, EPA staff will be participating in the Technical Roundtable session to discuss priority clean water issues in an informal setting with Policy Forum participants.  Reserve your hotel room by contacting the Westin Washington DC City Center at 202/429-1700 by April 17 to guarantee the special conference rate of $249 single/double.  Online registration and up-to-date program information is available on NACWA’s website.

NACWA Pretreatment Workshop to Feature Increased Networking Opportunities

Join your clean water colleagues for the only conference designed especially for pretreatment professionals, NACWA’s National Pretreatment & Pollution Prevention Workshop, May 18-20, at the St. Louis Union Station Marriott.   The Workshop will feature a variety of panel presentations focusing on issues such as the effluent guidelines development for dental amalgam separators, unused pharmaceutical disposal, the beneficial use of food wastes, and case studies on pretreatment investigations.  EPA Regional staff will again participate in the popular EPA Regional Roundtable session, allowing participants to have discussions with the EPA Regional Pretreatment Coordinator and other utilities from their Region.  Building on past programs, the Workshop will include two breakout sessions on various topics to allow participants to network with their colleagues from utilities nationwide.  A special group rate of $129 per night (single/double) is available at the St. Louis Union Station Marriott if reservations are made by Tuesday, April 26.  View the preliminary agenda , register online and see other information about the Workshop on NACWA’s website.

EPA/Regulatory Review

NACWA Participates in Stakeholder Meeting, Prepares Comments on EPA Regulatory Review Process

NACWA participated in a March 14 public listening session held by EPA to gather input on how the Agency should conduct its review of regulations to comply with President Obama’s January 18, 2011 Executive Order (EO) 13563, “Improving Regulation and Regulatory Review.”  EO 13563 directs each federal agency to consider “how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome.”  EPA began the meeting with a general session to discuss the overall regulatory review plan, the criteria for identifying and prioritizing regulations for review, and the timing of the review.  In response to stakeholder comments during this session, EPA extended the deadline for commenting on how its review should be conducted to Monday, April 4.

A session specific to Clean Water Act regulations was also held as part of the listening session, and Jim Hanlon, Director of the Office of Wastewater Management in EPA’s Office of Water, was present at this session.  Topics discussed included the need to implement controls on nonpoint sources of nutrients, the problems of regulating through guidance rather than the normal rulemaking process, and better considerations of costs versus benefits in regulations.

NACWA will submit comments by the new April 4 deadline, and will use this opportunity to raise issues about regulatory prioritization and affordability concerns that are the focus of the Association’s Money Matters™ campaign.  The Association encourages all of its members to submit comments, as well.  More information about EO 13563 and EPA’s response to it are available on EPA’s website.  The Agency will release its plan by late May, including its initial list of regulations to review.

EPA Releases Coming Together for Clean Water Strategy

On March 28 EPA released Coming Together for Clean Water: EPA’s Strategy to Protect America’s Waters. The document details a framework and set of priority actions for the Office of Water and how those actions will help to meet the Agency’s broad water-related strategic planning goals over the next several years.  In April 2010, EPA Administrator Lisa Jackson brought a broad range of stakeholders together for the Coming Together for Clean Water forum, including several NACWA members. The discussion at the forum focused on how to reinvigorate the nation’s clean water programs to achieve a significant leap forward in clean water protections.  Through that discussion, EPA developed a framework for how its national clean water program will address the challenges and also highlights priorities for achieving clean water goals.  EPA identified five key areas to guide its implementation efforts and actions: develop a baseline for tracking progress; increase protection of healthy watersheds; restore degraded waters and ecosystems; reduce pollution from point sources; and enhance watershed resiliency and revitalize communities through sustainable approaches and technologies.  Many of the actions identified by EPA are already underway, including EPA’s work on new stormwater rules and efforts to revise the existing water quality standards regulations.  In several places in the document, EPA stresses the importance of partnering with local governments, streamlining workloads, and focusing on the overall sustainability of new regulatory requirements.  These are key elements of NACWA’s Money Matters campaign and NACWA will be working to explore these further with EPA.  More information on Coming Together for Clean Water can be accessed on EPA’s website.

Wet Weather

SSO Workgroup to Review NACWA Position as EPA Discusses Potential Facilitated Session

After EPA explored the possibility of initiating a rulemaking on sanitary sewer overflows (SSOs) last year, and collected public input on what a potential rule should include, the Agency stated earlier this year that budget challenges have stalled action on this issue.  The issue, however, still remains a priority for NACWA members who discussed at last month’s Winter Conference moving forward with a petition to EPA for a rulemaking.  During subsequent discussions with EPA staff, the Agency offered to review a NACWA proposal for a new SSO rule based on the Agency’s 2001 proposed rule.  In another conversation last week, EPA staff offered to organize a one-day facilitated stakeholder session on the SSO issue.  NACWA will be pushing the Agency to commit to this session in writing and to schedule it as soon as possible.

While awaiting further action from EPA, NACWA will continue to move forward.  The group of leaders from key NACWA Standing Committees, who had worked on the Association’s draft petition for an SSO rulemaking last year, is currently discussing the Association’s positions on SSO-related issues and the steps that the Association will need to take to advance these issues with EPA.  Discussions include a review of the work done by NACWA related to EPA’s 2001 proposed rule and the recommendations that Association made at that time to EPA.  This workgroup will also be establishing a timetable for bringing a proposal to EPA – and for the Agency’s response to the proposal – with the understanding that the petition prepared last year is ready to file if sufficient progress is not made by EPA.  NACWA will keep members informed about progress and new developments regarding the SSO issue.

DOJ Guidance Clarifies Federal Payment of Stormwater Fees

The U.S. Department of Justice (DOJ) released a legal opinion and guidance document on March 18 clarifying that federal government facilities local stormwater service charges are payable out of annual lump-sum appropriations for general operating expenses, and do not need additional stormwater-specific appropriations for payment.  The guidance, which is binding on federal government agencies, provides a legal analysis of the recently enacted Clean Water Act amendment (S. 3481) directing federal government facilities to pay local stormwater charges and represents an important victory for NACWA and its stormwater members on this critical issue.  Additional information and analysis of the DOJ legal opinion is available in Advocacy Alert 11-09.

One issue not directly addressed in the DOJ legal opinion is whether S. 3481’s requirement for federal payment of stormwater fees applies to any outstanding or past due payments that federal agencies may currently owe to stormwater utilities.  It is NACWA’s position that, because S. 3481 simply clarifies an existing legal obligation under the CWA for federal facilities to pay stormwater charges, past due amounts are payable under the legislation.  NACWA encourages stormwater utilities with outstanding charges to continue pursuing payment of those fees.  NACWA will continue its efforts with DOJ, EPA, and the congressional sponsors of the legislation to obtain additional clarification on this issue and will keep the membership updated.

EPA Responds to NACWA Pressure, Agrees to Comment Period on Stormwater Memo

Responding to pressure from NACWA and other groups, EPA issued a notice on March 17 that it was opening a formal 60-day comment period on a controversial stormwater memo released by the Agency in November 2010.  NACWA’s review of the memo determined that it contains significant substantive and procedural flaws.  EPA’s decision to open a public comment period on the document, as well as the possibility of revising or withdrawing the memo based on the comments received, marks an important victory for NACWA’s stormwater advocacy efforts and affirms the importance of stakeholder input on stormwater issues.  NACWA, along with the National Association of Flood & Stormwater Management Agencies (NAFSMA) and the American Public Works Association (APWA), sent a strongly worded letter to EPA in January outlining the significant concerns of the municipal stormwater community with the memo and questioning both the legal basis for EPA’s statements, as well as the lack of consultation with regulated entities prior to the memo’s publication.

NACWA will submit additional comments to EPA on the memo by the May 16 comment deadline, and also plans to meet with the Agency to further discuss the document and the joint municipal response letter.  Any NACWA members with concerns about the November memo are also invited to submit their own comments.    The more feedback EPA receives from the regulated community regarding the significant problems with the memo, the more likely they are to make changes or completely withdraw the document.  Any members that comment on the memo are requested to send a copy of their submission to NACWA by e-mailing them to This e-mail address is being protected from spambots. You need JavaScript enabled to view it .