» Clean Water Current Archive

July 29, 2011

NACWA Helps Secure Positive Outcome in Ruling on New TMDL for Anacostia River

The United States District Court for the District of Columbia (D.C.) issued a largely favorable decision this week in Anacostia Riverkeeper v. U.S. Environmental Protection Agency (EPA), a case challenging the Anacostia River total maximum daily loads (TMDL) for sediment and total suspended solids (TSS).  This case comes after the D.C. Circuit’s 2006 decision in Friends of the Earth v. EPA, which invalidated the previous TMDLs for the Anacostia River because they imposed seasonal and annual, rather than daily, loadings.  EPA reissued the TMDLs with daily loads and the Riverkeeper appealed again on the ground that the daily loadings were not sufficiently stringent. NACWA, along with public agency member DC Water and other organizations representing municipal interests, successfully filed a Motion to Intervene in the litigation in 2009 in support of EPA.

The court’s decision granted NACWA’s and the other municipal intervenors’ Motion for Summary Judgment in part and denied it in part.  In agreeing with EPA and the municipal intervenors, the court found that:

• It is permissible to set very high daily loadings for sediment/TSS when striving to implement a standard for secchi depth that is expressed as seasonal or annual averages — this was the main issue in the case and is a critical victory for NACWA and the municipal utility community.

• EPA properly targeted the TMDL to the seasonal secchi depth criterion rather than the numeric turbidity criteria;

• EPA may impose wasteload allocations for Municipal Separate Storm Sewer Systems (MS4s) in the aggregate rather than having to break the loadings down and apply them to individual outfalls; and

• EPA may use an implicit margin of safety.

However, the court disagreed with EPA’s omission of loadings for other, non-aquatic life uses and held that when developing a TMDL for a particular pollutant, the State or EPA must address all applicable water quality standards (WQS), including all designated uses and water quality criteria.  The court rejected the municipal intervenors’ argument that the TMDL need only address the use impairments included in the state’s 303(d) list.  In this case, Maryland’s 303(d) list only listed the Anacostia as being impaired by TSS and sediment for aquatic life uses.  The court indicated that EPA violated the CWA and gave the Agency one year to go back and revisit the TMDL to develop loadings to address recreational and aesthetic uses for the river.

Overall, the court’s ruling in this case is a victory for NACWA, DC Water, and the clean water community.  Members interested in more information on this decision can review DC Water’s press release and get additional background information on NACWA’s Legal Resources webpage.  NACWA will be providing additional information on this case to members in future publications and the decision will be posted on NACWA’s website soon.

NACWA Meets with Top EPA Attorneys, Key EPA Staff on Incineration

As key deadlines approach in NACWA’s legal challenge to the sewage sludge incinerator (SSI) Clean Air Act (CAA) emissions standards finalized in March, Association staff met with EPA’s Deputy General Counsel Avi Garbow and key members of his staff this week to discuss NACWA’s petition for reconsideration and stay of the final rule.  NACWA filed its petition with EPA in late May and, to date, has received little indication regarding EPA’s reactions or plans for responding to the petition.  While the administrative petition is separate from NACWA’s legal challenge before the U.S. Court of Appeals for the D.C. Circuit, EPA’s response or lack thereof on the administrative petition does have important implications for the Association’s legal strategy.

The meeting with EPA’s Deputy General Counsel focused on NACWA’s assertion that Congress intended SSIs to be regulated under Section 112 of the CAA and that the Act itself clearly directs EPA to develop standards for SSIs under Section 112, not Section 129, the more stringent section of the Act that EPA used to develop the final SSI standards.  NACWA also underscored the fundamental flaws that are pervasive in the final 129 rule and the impacts the rule will have on incineration.  Earlier this month, NACWA staff also met with key EPA air office staff to discuss the petition, in particular the technical flaws with the final standards, and determine if the Agency had made any preliminary determinations regarding the merits of NACWA’s request for reconsideration.  At that time, EPA staff indicated that they were still in the process of reviewing the petition and had yet to make any decisions.  Staff from EPA’s key programmatic and legal offices are now working together to formulate the Agency’s response to NACWA’s concerns, most notably whether to grant the Association’s petition and request for a stay of the final rule.

If EPA does not grant NACWA’s administrative petition for reconsideration and stay of the final rule, the next step in the litigation will be to file a legal Motion for Stay asking the court to judicially stay the rule until such time as the merits of the NACWA lawsuit challenging the rule are resolved.  The original court deadline for this filing was July 22, but because EPA is still reviewing NACWA’s administrative request the court has extended the deadline until August 19.  NACWA is still optimistic that EPA will grant all or part of its reconsideration request along with a stay of the rule, but is prepared to proceed with litigation if EPA does not do so.  NACWA expects to have an indication from EPA on its decision around August 8 and will inform the membership of any developments.

NACWA Comments on EPA/Army Corps Draft Clean Water Act Jurisdiction Guidance

NACWA filed comments today on the proposed joint agency guidance issued on April 27, 2011 by EPA and the U.S. Army Corps of Engineers (USACE) on the scope of jurisdictional waters protected by the Clean Water Act (CWA).  As NACWA stated in its comments, the Association “is broadly supportive of efforts to strengthen the water quality protection afforded by the CWA when done as part of a holistic watershed approach, and believes the proposed guidance takes some important steps in this direction. . . . Overall, NACWA believes the draft guidance addresses several key concerns of NACWA’s members but would benefit from some additional clarity.”  NACWA also stated that ultimately a full rulemaking process would be needed in order to ensure the issue of jurisdictional waters under the CWA has the benefit of full notice and comment procedures.

The comments also point out that should EPA proceed to finalize the draft guidance, it is critical that, like the draft, the final document preserve the existing regulatory exemption for waste treatment systems.  The final guidance should also include explicit exemptions for municipal stormwater collection systems and groundwater from CWA jurisdictional coverage.  NACWA’s comments also outline concerns raised by NACWA members with the potential for certain types of ditches, as well as wetlands used in water reuse projects, to be deemed jurisdictional.  NACWA will keep members of informed of developments on this guidance as they develop.

House Debates FY 2012 EPA Spending Bill; NACWA Eyes Senate for Advocacy Push

The U.S. House of Representatives this week took up floor debate on the fiscal year (FY) 2012 Appropriations bill for the Departments of Interior, EPA, and related agencies.  The bill under consideration, which was recently passed by the House Appropriations Committee, would severely cut EPA’s budget by $1.7 billion, the bulk of which would come from cuts to the Clean Water and Drinking Water State Revolving Fund (CWSRF & DWSRF) programs.  The FY12 House-proposed spending package would cut the CWSRF by $800 million — from $1.495 billion in FY11 to $689 million; and the DWSRF by $115 million — from $945 million in FY11 to $829 million.  NACWA has consistently voiced its support with both the House and Senate for maintaining SRF funding at FY 2011 levels and will continue to urge the Senate to boost whatever funding levels are ultimately passed by the House.

There have also been several amendments offered during floor debate concerning the proposed funding package for the SRF programs.  One amendment offered by Congressman Tim Huelskamp (R-Kan.) would have cut funding further to these programs by $344 million for the CWSRF and $427 million for the DWSRF.   Congressman Tim Bishop (D-N.Y.), Ranking Member of the House Subcommittee for Water Resources and the Environment, offered an amendment to increase funding for the SRF programs by $1.5 billion but the amendment was ruled out of order because no offset for these funds was identified.  Finally, an amendment was offered by Congressman James Lankford (R-Okla.) that would have removed the requirement that States use at least 30 percent of the SRF funds for additional subsidization in the form of negative interest loans, principal forgiveness or grants.  This amendment also failed.

The House package also contains several policy provisions restricting EPA from using certain funds for programs that the House majority does not support.  These “riders” include restricting EPA’s ability to implement guidance on the jurisdictional status of waters of the U.S. (see related story); requiring EPA to submit a report to Congress before proceeding with a proposed new stormwater regulation; and, restricting EPA’s ability to implement proposed new water quality standards for the State of Florida.  Additional water quality-related policy riders are expected before the conclusion of the floor debate on this package, which could run into next week, given votes on the debt ceiling.  Some of the riders expected are likely to focus on restricting EPA’s ability to implement watershed implementation plans for the Chesapeake Bay, including the Bay-wide TMDL.

Once the House has determined which riders it will include in its bill, NACWA will provide a full assessment of the riders to the membership and will weigh in with the Senate on these riders as appropriate.

NACWA Convenes Healthy Waters Coalition Meeting to Discuss Farm Bill

NACWA convened a meeting this week of the Healthy Waters Coalition to continue work on developing policy recommendations for addressing nutrient run-off from agricultural lands in the upcoming reauthorization of the Farm Bill.  The Coalition has been meeting regularly for several months and has made much progress toward achieving consensus on a set of policy recommendations to ensure: 1) farmers have better tools available to them to monitor nutrient run-off; 2) the Farm Bill targets conservation funds to watersheds with the greatest nutrient impairment; and 3) farm safety net programs are linked to better nutrient management practices on the farm.  The Healthy Waters Coalition is bringing together the municipal water and wastewater community, the conservation community, and sustainable agricultural organizations to focus on advocating for strengthening the links between agricultural policy and water quality, specifically with respect to nutrient control.  The coalition anticipates releasing a set of written policy goals this fall and NACWA will share these with the full membership as soon as they are available.

Water Sector Addresses Gaps between Security Standard and Assessment Tools

A Critical Infrastructure Protection Advisory Council (CIPAC) workgroup met this week to address the gaps between the J100-10 standard, Risk Analysis and Management for Critical Asset Protection (RAMCAP®) Standard for Risk and Resilience Management of Water and Wastewater Systems, and three water sector risk assessment methodology tools – ARAM-W, SEMS, and VSAT.  The J100-10 standard received final approval from the American National Standards Institute (ANSI) in 2010.  The CIPAC workgroup was formed at the request of the Water Sector Coordinating Council (WSCC), after the release of a comprehensive study sponsored by the Water Research Foundation and the Association of Metropolitan Water Agencies, Gap Assessment for ASME-ITI/AWWA J100-10 Standard and Leading Vulnerability Assessment Tools.

Following two preparatory conference calls, the workgroup met in person to examine the gaps and make prioritized recommendations on modifications to the three tools to bring them into alignment with the J100-10 standard in areas including proximity and dependency hazards, natural hazards, and worst-case consequence analysis for critical assets.  The final recommendations of the workgroup will be used by EPA to determine the feasibility of modifying each of the three vulnerability assessment tools to make them compliant with the J100-10 standard.  The J100-10 standard and the workgroup’s conclusions will be discussed during a web-based meeting of NACWA’s Security and Emergency Preparedness Committee this fall.