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The U.S. Environmental Protection Agency (EPA) recently issued its Final Plan for Periodic Retrospective Reviews of Existing Regulations (the Plan) in response to President Obama’s charge in Executive Order 13563 for each federal agency to “develop . . . a . . . plan, consistent with law and its resources and regulatory priorities, under which the agency will periodically review its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed as to make the agency’s regulatory program more effective or less burdensome in achieving the regulatory objectives.”

In line with this effort, the National Association of Clean Water Agencies (NACWA) and several of its members sent comments to EPA, seeking to guide this effort.  Topping the municipal clean water community’s concerns was ensuring that EPA takes a new approach to Clean Water Act (CWA) permitting that can account for regulatory prioritization and that cost and affordability issues play a greater role in the development of new rules and guidance efforts.   As this Advocacy Alert discusses, EPA has taken some important steps in this Plan to address these concerns and NACWA has already held talks with key Agency officials to ensure that momentum on these initiatives continues.

Over view of EPA Plan

Pursuant to the Plan, EPA is undertaking 35 regulatory reviews, 16 of which fit into the category of early actions, meaning the Agency will be taking specific actions that could lead to modifications, expansions, streamlining or even repealing the rule.  The remaining 19 reviews are longer-term and include an assessment of whether actions are necessary.

Of the 16 early action items, only four are water quality-based and only three of the four involve water and wastewater utilities directly; one was focused on agricultural sources of water quality impairment.  These four early action items are:

1. Combined sewer overflows (CSOs) and integrated planning for wet weather infrastructure investments: providing flexibilities;
2. Providing regulatory certainty for farmers on water quality issues by working with the U.S. Department of Agriculture (USDA) and states;
3. Coordinating NPDES requirements and removing outdated requirements; and
4. National primary drinking water regulations — Long Term 2 Enhanced Surface Water Treatment: evaluating approaches that may maintain, or provide greater, public health protection.

In addition, two other broad-based early action items identified by EPA could provide significant benefits to NACWA members:

1. A report on innovative technology — seeking to spur new markets and utilize technological innovations; and
2. A report on the costs of regulations — improving cost estimates.

These early action items are discussed in greater detail below.  This Advocacy Alert does not go into as much depth on the long-term action items because they are largely focused on efforts that have been underway for a period of time preceding the release of the report and there is little in the way of new detail provided about these efforts. One exception is the discussion of the sanitary sewer overflow rule that deserves some attention.

Clean Water Act Integrated Permitting and Regulatory Prioritization

Of greatest significance to NACWA members is the section of the Plan that points to a serious commitment on the Agency’s part to develop a workable approach to regulatory prioritization in line with NACWA’s Money Matters . . . Smarter Investment to Advance Clean Water™ campaign.  The section below is an excerpt from the key section of the report that discusses integrated wet weather permitting as well as across-the-board Clean Water Act (CWA) regulatory prioritization:

2.1.10 ** Combined Sewer Overflows (CSOs) and integrated planning for wet weather infrastructure investments: providing flexibilities

Next steps: In fall 2011, EPA intends to initiate a process to conduct additional outreach with respect to how to improve the implementation of the CSO Policy.  In particular, EPA intends to support and encourage the use of green infrastructure as part of an integrated approach to reduce stormwater flows in the CSO system and develop an approach for prioritizing wet weather investments into integrated permitting or other vehicles with accountability. In addition, EPA intends to consider approaches that allow municipalities to evaluate all of their CWA requirements and develop comprehensive plans to meet these requirements. (Emphasis Added)

It is important to note that this language was not part of EPA’s original draft plan, but was incorporated because of a strong comment effort by NACWA and its members, including New York City and Chicago , and other key municipal stakeholders – including the U.S. Conference of Mayors and The Perfect Storm Coalition– advocating on behalf of this issue.

NACWA also learned more regarding how serious EPA is regarding this effort in a recent discussion with key Agency officials.  The meeting was organized by EPA in a swift response to NACWA’s August 9 letter to the Agency’s Acting Assistant Administrator for the Office of Water, Nancy Stoner, and the Assistant Administrator for the Office of Enforcement & Compliance Assurance (OECA), Cynthia Giles, seeking a meeting to discuss the Association’s recommended approach to integrated permitting and regulatory prioritization as set out in its Money Matters™ draft legislation .

Both Giles and Stoner participated in the meeting as did nearly a dozen other EPA staff from OECA, the Office of Water, the Office of Policy, the Deputy Administrator’s Office, and the Office of Congressional & Intergovernmental Relations, demonstrating the seriousness with which EPA, as a whole, is taking this issue.

Both Stoner and Giles committed to work together closely on this issue and to embark on next steps expeditiously.   There was discussion of kicking off the effort with a joint announcement or press event, and the need for an expedited EPA document, perhaps a memo to all Regions and delegated States, describing how such an integrated permitting process could work.  Both Stoner and Giles felt that because this was based on a permitting process it would not need a formal rulemaking or guidance process.  Giles was clear that OECA was bought into such an approach, but that such permits would have to be crafted clearly and be subject to an enforcement structure.

The meeting, together with the inclusion of the language in the Plan,  make it clear that the municipal community’s concerns are being taken seriously by EPA and the Administration, and that NACWA’s legislative effort is providing the leverage driving much of this discussion.  NACWA is in the process of identifying and contacting a dozen or so communities who would be willing to provide input to EPA on an integrated permitting approach.  The Association also plans to continue to advance its legislative agenda on a parallel track and will be holding follow-up meetings with EPA and key stakeholder groups in the coming weeks.

Green Infrastructure

Also, as part of its effort to provide flexibility in the wet weather context, EPA re-emphasized its commitment to green infrastructure, pointing in the Plan to its work with several NACWA member agencies — Kansas City, Cleveland and St. Louis — as examples of the Agency’s willingness to include green infrastructure in recent settlements and to provide flexibility in terms of both performance criteria and implementation schedules.  As the Agency notes, “EPA is using GI [green infrastructure] in National Pollution Discharge Elimination System (NPDES) permits, as well as remedies designed to comply with the Clean Water Act (CWA), recognizing that green infrastructure can be a cost-effective, flexible and environmentally sound approach to reduce stormwater runoff and sewer overflows and to meet CWA requirements.”

EPA and Agriculture

EPA plans to work with USDA and state governments to explore flexible, voluntary approaches for farmers to implement “voluntary practices that reduce impacts on water quality.  In particular, if farmers’ actions result in quantifiable and verifiable improvements in water quality and resource conservation, EPA and USDA could work with states to develop programs that can provide assurances that the farmers’ actions are, for a reasonable, fixed period of time, consistent with state plans to improve water quality.”  The expectation is that this program should be up and running by the end of the calendar year.

NACWA applauds such voluntary efforts to incentivize farmers to do their fair share in reducing pollutant loads to the Nation’s waterways.  NACWA is seeking to spotlight the problem, especially as it relates to nutrient loadings, by advocating for strong language in the upcoming Farm Bill linking agricultural practices to the nutrient challenge through a broad coalition effort while also spotlighting this issue for the public and the media.

Coordinating Permit Requirements and Removing Outdated Requirements

This effort has been underway for some time and involves the elimination of inconsistencies between application forms; modifying or repealing permitting, monitoring, and reporting requirements that have become obsolete due to programmatic or technological changes that have occurred over the past 20 years; and modifying permit document and objection procedures to improve the quality and transparency of permit development.  Examples of such a change would be allowing states to post notices and draft NPDES permits on their websites instead of traditional and costly newspaper postings.

NACWA will continue to track this effort, though the modifications are anticipated to be fairly narrow in nature.

Long-Term 2 Enhanced Surface Water Treatment  Rule (LT2)

EPA made the determination to review this rule, which according to the Plan requires public water systems that store treated water in open reservoirs to either cover the reservoir or treat the water leaving the reservoir to inactivate viruses such as Giardia or Cryptosporidium.

As the Plan states EPA “plans to review the LT2 regulation as part of the upcoming Six Year Review process. . . . EPA would assess and analyze new data/information regarding occurrence, treatment, analytical methods, health effects, and risk from all relevant waterborne pathogens to evaluate whether there are new or additional ways to manage risk while assuring equal or improved protection. . .” EPA plans to hold stakeholder meetings on this issue in 2012.

NACWA believes this section is important because some of its joint wastewater/drinking water treatment members face significant costs should they have to cover their reservoirs and this decision demonstrates  an opportunity for innovative and creative approaches to a potentially very costly requirement.

Innovative Technology Initiative

EPA is seeking to conduct a “technology opportunity and market assessment of two pending regulations in order to begin developing a framework for considering such information during the regulatory process.” Although EPA does not state which two rules this effort will be applied to, the Agency does say that the goal is to “foster new market opportunities for green technology and infrastructure and will also provide new opportunities for the creation of more flexible and cost-effective means of compliance”.   In the discussion of this effort, EPA also touts its collaboration with the regional Water Technology Innovation Cluster (WTIC), which was formed to solve environmental challenges in a sustainable manner and to spur job growth through the expansion, creation and attraction of water technology companies and investment.

NACWA has already spoken to EPA staff to seek additional information on this effort and to have the opportunity to provide input into this initiative as it advances.  The assessment is expected to be completed before the end of the year.

Regulatory Cost Analysis

The purpose of this study is to “evaluate why and to what degree compliance cost estimates developed prior to the issuance of a regulation (ex-ante compliance costs) differ from actual compliance costs realized after a regulation takes effect (ex-post compliance costs).” Significantly, this evaluation is meant to determine if any systematic biases exist in EPA’s estimate of compliance costs.  As part of this study, EPA is reviewing its compliance cost estimates for five regulations — none of which are CWA regulations. The arsenic rule under the Safe Drinking Water Act was included as one of the five.   NACWA will be tracking this effort closely and will urge EPA to consider adding a CWA-based regulatory cost-estimate analysis to the existing five rules.

Again, NACWA has already spoken to EPA staff to seek additional information on this effort and to have the opportunity to provide input into this evaluation as it advances.  The evaluation is expected to be completed before the end of the year.

Long-Term Actions: Sanitary Sewer Overflows and Others

Contrary to NACWA’s recommendations in its comments, EPA listed its work on a sanitary sewer overflow (SSO) rule as a long-term action.  While touting the benefit of its stakeholder workshop in July 2011, which NACWA participated in, the Agency’s only stated action on the SSO front is “to consider the comments received from our workshop participants in determining next steps” by the summer of 2012.

NACWA has already spoken to EPA staff and expressed its disappointment with this approach, especially in light of more encouraging statements from EPA in the wake of the stakeholder meeting.  In addition, EPA’s effort to move forward expeditiously on an integrated permitting and regulatory prioritization approach will require the increased clarity and consistency that only an SSO rule can provide.

Also on EPA’s agenda for the long-term is an ongoing effort to reduce CWA section 303(d) and 305(b) reporting burdens and duplication; a review of the 2003 Water Quality Trading Policy; and simplifying and rendering more transparent the process for setting and implementing water quality standards.  These are all important efforts that NACWA will continue to be engaged in over the long-term.

Next Steps

NACWA will continue to monitor the progress on each of the short-term and long-term review items and to advocate and voice the concerns of the clean water community as appropriate.

The Plan also notes that EPA, in line with the Executive Order, must conduct such regulatory reviews, with a full stakeholder process, every five years.  Just as it was directly involved in setting the priorities for this regulatory review plan, NACWA will be equally involved in ensuring that it continues to seek reviews as appropriate and necessary pursuant to the process set forth in the plan.

If you have any questions regarding this Advocacy Alert, please contact Adam Krantz at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or 202/833-4651.