» Clean Water Current Archive

September 16, 2011

Administration Releases Jobs Package, NACWA Meets with Key Hill Staff

On September 12, President Obama released the American Jobs Act of 2011 (AJA) in line with a speech he made a few days prior on the need to spur job growth.  The package contains several job-creating proposals, including direct spending in several infrastructure sectors and the creation of the American Infrastructure Financing Authority (AIFA), which would provide $10 billion in loans for transportation, water/wastewater, and energy projects via a new infrastructure bank.  For more information on the AJA, please see Advocacy Alert 11-21, sent to members earlier this week.

NACWA is pleased that the Administration continues to recognize the importance of water-related infrastructure investment as part of stimulating job growth, in line with the Association’s fall campaign to ensure clean water was included in the proposal.  Including water infrastructure as an project type eligible for financing under the AIFA is an important step in the national debate about the critical role that water infrastructure plays in revitalizing the economy and our communities while also improving the environment. However, as Congress begins to consider this proposal, there are a number of questions on which NACWA would appreciate member input:  Would additional loan funding via an infrastructure bank be beneficial to clean water agencies?  Would such a bank negatively impact the municipal bond market?  Should NACWA pursue additional clean water investment as this proposal goes through the legislative process?

As requested in the Advocacy Alert, please send in your comments on the AJA package as quickly as possible. These responses can be submitted to Hannah Mellman, NACWA's Legislative Manager, at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

In related news, NACWA and the Water Infrastructure Network (WIN) sought input from key staff on Capitol Hill regarding the AJA including meetings with committee staff for Senate Environment & Public Works Committee Chairwoman Barbara Boxer (D-Cali.) and Ranking Member James Inhofe (R-Okla.).  NACWA also underscored the importance of direct funding for water infrastructure in any final package.  While they were still analyzing Obama’s proposal, both offices acknowledged the importance of making the case for water infrastructure throughout the process and appeared in favor of funding for additional clean water investments in a final bill.  NACWA will be following up with them, as well as with other key Senate and House members in the coming weeks, and will keep the membership fully informed of any developments.

NACWA Meets with EPA Administrator's Top Policy Advisors on Money Matters™ Campaign, Integrated Permitting

NACWA met this week with three of EPA Administrator Lisa Jackson's top political and policy advisors to discuss next steps for moving forward toward a viable approach to integrated CWA permitting and regulatory prioritization pursuant to the Association's Money Matters™ campaign.  NACWA's discussion was led by George Hawkins, General Manager of DC Water and Chair of the Association's Money Matters Task Force.  EPA was represented by Arvin Ganesan, Associate Administrator of the Office of Congressional and Intergovernmental Relations;  Bicky Corman, Deputy Associate Administrator for the Office of Policy; and Sarah Hospodor-Pallone, Deputy Associate Administrator for the Office of Intergovernmental Relations.

The meeting exemplifies the type of high-level attention NACWA's effort is receiving and receptiveness to infusing some flexibility and viable compliance schedule prioritization into the CWA.  The effort is also benefitting from the growing pressure on the Administration from several groups, including the U.S. Conference of Mayors and the Association of Clean Water Administrators (ACWA, formerly ASIWPCA), to help struggling cities and states with an ever-expanding and costly regulatory regime.  George Hawkins provided an excellent example from his own utility, which is dealing with a sewer overflow consent decree, Chesapeake Bay nutrient control, and aging infrastructure that demands ramped up investment, among other issues.  NACWA also shared its September 9 letter outlining its recommendations to EPA for immediate next steps on this effort.

The meeting ended with the promise from EPA to bring the issue directly and promptly to Administrator Lisa Jackson for a discussion on next steps and to get back to NACWA quickly.  In addition Acting Assistant Administrator for Water Nancy Stoner will be having an initial informal discussion with several NACWA members on what an integrated permit would look like when they gather for the Clean Water America Alliance's Urban Water Sustainability Leadership Summit in Milwaukee next month.

NACWA believes there is a unique opportunity available to make progress on this issue and will continue to pursue all legislative and regulatory avenues aggressively.  In addition to the meeting with EPA, NACWA hosted a stakeholders meeting with key municipal, state, engineering, rural and other groups this week, with the majority of the groups expressing support for the effort, including the American Public Works Association,  ACWA, the Water Environment Federation, the National League of Cities, and others.

SSI Legal Efforts Shift to High Gear, NACWA Files Request for Judicial Stay

NACWA submitted an Emergency Motion for Judicial Stay of EPA’s final air emissions rule for sewage sludge incinerators (SSIs) on Sept. 9, marking an important step forward in the Association’s advocacy efforts to push back against the rule.  The filing comes after NACWA recently learned that EPA intends to deny the Association’s request for an administrative reconsideration and stay of the new SSI air regulations.  Given EPA’s refusal to act, NACWA’s motion for stay requests the federal court of appeals in Washington, D.C. to judicially place implementation of the rule on hold until such time as the court addresses the merits of NACWA’s underlying lawsuit against EPA over the rule.

The NACWA motion outlines a number of compelling legal arguments against the rule, including the fact the EPA ignored Congress’ intent by regulating SSIs under the wrong section of the Clean Air Act and developed the final emissions limits using faulty data.  The motion also outlines the significant operational, financial, and environmental harm that clean water utilities using SSIs and their surrounding communities will face if the rule is not stayed.  Additionally, the motion requests that the court conduct an expedited review of NACWA’s request for a judicial stay and issue a ruling as soon as possible.  Additional information on NACWA’s legal SSI efforts is available on the Litigation Tracking page of the Association’s website.  We will keep the membership updated on developments.

NACWA Raises Concerns over EPA Recreational Criteria Efforts

NACWA this week wrote a letter to Ephraim King, Director of the Office of Science & Technology in EPA’s Office of Water, expressing concerns over the Agency’s current direction in its efforts to revise the national recommended criteria for recreational water quality.  The September 14 letter raises some of the same concerns the Association raised in a letter earlier this year, but also provides feedback based on discussions at a June 2011 stakeholders' workshop during which EPA provided an initial outline of its plans to revise the criteria.

NACWA’s primary concern, as outlined in the September 14 letter, involves the timing for the release of the final criteria recommendations and the planned implementation guidance.  During the June stakeholder meeting, EPA staff indicated that the final criteria would be released before any implementation guidance was ready, perhaps even before draft implementation guidance had been released for public comment.  NACWA’s letter notes that this is “a major concern given the complexity of implementing these criteria and the added challenge of overlaying new criteria on existing programs based on the 1986 criteria.”

NACWA’s letter also sought additional details on the Agency’s current thinking on the derivation of the new criteria and how that thinking may have evolved since the June stakeholder meeting.  Another major concern is EPA’s process for conducting a peer review of its methodology.  EPA has shared no information regarding the peer reviewers, the charge questions, or what materials were provided to the peer reviewers.  NACWA asked EPA to post these materials on its website.  NACWA members will participate in a September 20 webinar on the criteria and will continue to track EPA’s efforts until the criteria are released for public comment in early 2012.

NACWA Submits Brief Supporting Utility Member in Stormwater Fee Litigation

NACWA filed a brief today with the Missouri Court of Appeals supporting Association member agency the Metropolitan St. Louis Sewer District (MSD) in a critical lawsuit addressing whether utility fees for municipal stormwater services properly qualify as reasonable service charges or impermissible taxes.  NACWA’s brief argues that the use of impervious surface to calculate stormwater service charges – as done by MSD in their stormwater program – is increasingly becoming the industry standard for calculating stormwater fees in the most equitable manner.  Additionally, the NACWA brief argues that many other states around the country have already determined that stormwater fees qualify as reasonable service charges and not taxes, and highlights the fact that Congress has passed legislation that amended the CWA to clarify that municipal stormwater fees based on impervious surface area qualify as appropriate service fees for payment by federal government facilities.

The litigation stems from a 2010 decision by a Missouri trial court finding that MSD’s stormwater utility fees were illegal taxes, thereby invalidating the utility’s entire stormwater fee program.  MSD appealed the decision and NACWA’s brief supporting the utility argues that the trial court’s decision suffered from fundamental legal flaws regarding the nature of municipal stormwater service and stormwater fees.

The issues involved in this litigation have significant national implications for other municipal stormwater utilities using a similar fee structure.  NACWA is participating in the case to push back against any negative legal precedent regarding the use of impervious surface as a basis for stormwater charges.  The American Public Works Association (APWA) and the National Association of Flood & Stormwater Management Agencies (NAFSMA) also joined NACWA on the brief.  A copy of the brief will be available on NACWA’s website soon.  We will continue to track developments in the case and keep the membership updated.

NACWA, Water Associations Discuss Climate Change

NACWA met this week with other water sector associations, including the Association of Metropolitan Water Agencies (AMWA), the Water Environment Federation (WEF), the American Water Works Association (AWWA) and the Water Research Foundation (WRF), to discuss current legislative and EPA activities related to climate change and water.   The associations talked about the strategy for continuing to support the (H.R. 2738), introduced by Rep. Lois Capps (D-Calif.).  NACWA and other organizations sent a joint letter of support for the legislation, which would establish a grant program through EPA for drinking water, wastewater, and stormwater management agencies to increase resiliency or adaptability of their operations and infrastructure.  A briefing on climate change adaptation challenges for the water sector is being planned by NACWA and other associations for later this year or early 2012.  The associations also discussed EPA’s Climate Ready Water Utilities initiative and the tools for utilities that are being developed as part of this initiative.  EPA will be providing an overview of the Climate Resilience Evaluation and Awareness Tool (CREAT) to the associations today, and the associations will offer their feedback to EPA.  The associations meet periodically to review their climate change efforts and find areas of collaboration, and the next meeting will be a discussion with David Travers, Director of EPA’s Water Security Division in the Office of Water, on EPA’s climate change priorities.  NACWA will inform members of the results of this meeting, which will likely be held in November, and keep members updated on any legislative or regulatory developments regarding climate change.

NACWA, Regional Members Discuss Top Challenges at Kansas City Summit

NACWA staff participated this week in the third annual Clean Water Summit in Kansas City, Missouri.  Clean water agencies from Kansas, 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 continued uncertainty on the issue of peak excess flow blending.  NACWA provided updates on key legislative and regulatory issues from the past year, including an overview of the activities related to NACWA’s Money Matters™ campaign effort on integrated permitting and regulatory prioritization.  EPA’s pending decision on whether to pursue a new sanitary sewer overflow rule, and its work to revamp the national regulatory framework for stormwater point to a very active year in 2012.  A top issue for many utilities in EPA Region 7, which encompasses the states that participated in the Summit, is the Agency's new rule governing the incineration of biosolids.  Summit participants were updated on the latest regarding NACWA’s administrative and legal petitions to seek changes to the sewage sludge incineration (SSI) rule and the related "definition of solid waste" rule.

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.  NACWA renewed its commitment to challenge EPA’s actions on the blending issue at the appropriate time and noted its active engagement on the legal front on incineration and nutrient issues.  As Clean Water Act (CWA)-related decisions are 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 advocacy issues.

Preliminary Agenda Now Available for Law Seminar, Hotel Deadline is October 21

A preliminary agenda is now available for NACWA’s 2011 Developments in Clean Water Law Seminar, outlining a number of cutting-edge clean water legal topics to be addressed during the conference.   The Seminar, scheduled for November 16 -18 at the historic Francis Marion Hotel in Charleston, South Carolina, promises to deliver an exciting and informative program addressing the most important topics currently impacting municipal clean water attorneys and utility managers.  Among the topics to be addressed include a panel examining emerging wet weather issues, a review of legal challenges related to nutrient and nonpoint source control, and a discussion on how clean water lawyers can communicate more effectively with a variety of audiences.  There will also be an overview of the most important CWA cases of the past year, an examination of how clean water utilities can pursue reopeners in wet weather consent decrees, and a summary of critical developments in clean water law enforcement actions.  The agenda will be updated in the coming weeks as speakers are confirmed.  Additional information on the Seminar is available on NACWA’s website.  The hotel registration deadline is October 21, so make your plans to attend today!