» Clean Water Current Archive

October 14, 2011

House Introduces Bipartisan Bill to Fund Clean Water as Senate Votes Down American Jobs Act

On October 11 the Senate voted down The American Jobs Act of 2011, President Obama’s jobs proposal that sought to create a national infrastructure bank for transportation, water/wastewater, and energy projects.  The move came as no surprise and Senate Democrats are now poised to push for votes on various pieces of the package that may have broader support.  NACWA continues to actively pursue the inclusion of a provision for $10 billion in direct funding for clean water infrastructure in such legislation (see October 7, 2011 Clean Water Current).

Despite this move by the Senate, NACWA was pleased that leaders of the House Transportation & Infrastructure Committee introduced the bipartisan Water Quality Protection & Job Creation Act of 2011 on the same day.  Cosponsored by Representatives Tim Bishop (D-N.Y.), Nick J. Rahall (D-W.V.), Tom Petri (R-Wis.), and Steven LaTourette (R-Ohio), this legislation would invest $13.8 billion in the clean water state revolving fund (CWSRF) and would ensure the long-term financing of wastewater infrastructure through the establishment of a Clean Water Trust Fund.  In the official press release, Rahall stated, “Our Nation’s water infrastructure is aging, threatening the reliability of service and the health and safety of families who rely upon it.  While the amount of public funding available to support repair and replacement has long been insufficient and is declining, this new bill constitutes a badly needed shot to help shore up our aging systems and grow our economy.”  NACWA was instrumental in gaining bipartisan support for this legislation and the Association will continue to work with these members and others to help develop further support.

NACWA Continues Discussions on SSO Rule with Stakeholder Groups

NACWA resumed discussions this week on a sanitary sewer overflow (SSO) rule by hosting a conference call with the environmental organizations that participated in the July 14-15 EPA workshop on SSOs.  The representatives from American Rivers, the Natural Resource Defense Council (NRDC), and other participating organizations expressed their interest in continuing to build toward a consensus on the components of a SSO rule.  With EPA committed to pursuing an integrated wet weather permitting approach – addressing many of the objectives of NACWA’s Money Matters™ draft legislation – NACWA and the environmental groups see this as an opportunity to hold EPA to its stated commitment of moving forward with an SSO rule.  The integrated permitting approach will likely draw on the existing combined sewer overflow (CSO) rule and the upcoming stormwater rule, but the lack of a SSO rule and the resulting uncertainty for utilities dealing with SSO control will make a truly integrated approach more difficult to achieve.

NACWA, the environmental groups, and the other participants in the July workshop, including the Water Environment Federation (WEF) and the Association of Clean Water Administrators (ACWA formerly ASIWPCA), will likely hold a series of conference calls to address the issues coming out of the workshop that require further discussion, particularly the compliance standard for SSOs and the use of alternative treatment of peak flows.  NACWA will keep members informed as these discussions progress.

NACWA Granted Intervention in Chesapeake Bay Daily Loads Case to Defend Holistic Watershed Approach

NACWA was granted intervention Oct. 13 in critical litigation over the final total maximum daily load (TMDL) for the Chesapeake Bay, clearing the way for the Association and its municipal coalition partners to participate in the case and defend the holistic watershed approach outlined in the TMDL from assault by non-point source agricultural interests.  The order granting intervention issued by the U.S. District Court for the Middle District of Pennsylvania found that NACWA and it municipal partners have a legally protectable interest to justify intervention in the case, including both an “interest in the amount of nutrients and sediment their members are authorized to discharge” as well as “economic interests of preserving their capital investments in treatment upgrades.”  The court also noted that given complexity of the issues involved in the case, allowing NACWA and the other intervenors into the case can “serve to clarify issues and…contribute to resolution of this matter.”  Importantly, the court granted NACWA’s intervention in the litigation under the “as of right” legal test, establishing an important legal precedent that will be very helpful to the Association –  and individual clean water utilities that may seek to intervene in other TMDL-related cases in the future.

NACWA filed a Motion to Intervene in the case in May as an intervenor defendant on the side of EPA.  By doing so, NACWA sought to protect the interests of its municipal clean water agency members in the litigation and defend EPA’s ability to address all sources of water quality impairment.  NACWA was joined in the motion by the Maryland Association of Metropolitan Wastewater Agencies (MAMWA) and the Virginia Association of Metropolitan Wastewater Agencies (VAMWA).  The litigation stems from an attempt by the American Farm Bureau, and a host of other agriculture groups, to challenge the final TMDL and limit EPA’s ability to regulate non-point agricultural dischargers as part of the TMDL implementation.  NACWA anticipates participating in the summary judgment phase of the litigation in the coming months.  Additional information on the case is available on the Litigation Tracking page of NACWA’s website and the membership will continue to be updated on future developments.

NACWA, Municipal Water Groups Meet with EPA to Discuss Top Regulatory Priorities

NACWA, and other groups representing municipal water interests, met with senior EPA staff from the Office of Water this week to discuss a range of priority drinking water and clean water issues.  EPA provided updates on several recent developments including a workshop the Agency held October 5-6 with state water officials to explore the use of biological information in the development and implementation of numeric nutrient criteria.  NACWA, along with state water regulators and other stakeholders, has been pushing EPA to provide the states with more flexibility when developing nutrient criteria – and to reconsider its position that numeric criteria for nitrogen and phosphorus must be developed for all waters and applied independently from any biological assessment information.

During the EPA-state workshop, the Agency heard from more than a dozen states that have already developed sophisticated programs for collecting and evaluating biological information to help them determine protective levels of nutrients for their states’ waters.  EPA staff indicated that these types of biological confirmation approaches could potentially be applied without violating the Agency’s existing policy on independent applicability, though the details of how this would work were not discussed.  The states are now working to develop a summary from the workshop and EPA has already begun discussions on an EPA memorandum that would outline how these types of biological assessment approaches could be used.  It remains to be seen whether EPA will truly embrace a ‘weight of evidence’ approach to implementing numeric nutrient criteria, but the workshop and forthcoming memorandum are positive developments that NACWA has been advocating for over the past decade.

EPA also provided updates to the municipal organizations on its work to develop a general permit for pesticide applications and several drinking water rules, and confirmed its commitment to work on developing an integrated planning/permitting approach to meeting Clean Water Act requirements that would focus on regulatory prioritization.  On the funding front, EPA said it was working to get CWSRF money out the door to states as quickly as possible in order to maximize its role in getting infrastructure work underway.

NACWA, Municipal and State Groups Urge Support for Key USGS Monitoring Program

NACWA, the Water Environment Federation (WEF), the Association of Clean Water Administrators (ACWA formerly ASIWPCA), and the Association of Metropolitan Water Agencies (AMWA) met this week with Ann Castle, the Department of Interior’s Assistant Secretary for Water & Science, and several other key staff to urge continued and consistent funding for the U.S. Geological Survey’s (USGS) National Water Quality Assessment (NAWQA) Program.  The program has been in place for several decades and provides consistent monitoring of water bodies to determine the levels of key pollutants and contaminants, as well as their pollution sources.  Thanks to this effort, USGS has been able to develop its SPARROW modeling tool, which has been invaluable to NACWA in its effort to identify agriculture as a primary contributor to nutrient pollution in the Nation’s water bodies.  Although the funding level for the program is quite modest, all Department of Interior and USGS programs are facing across-the-board cuts in the Fiscal Year 2013 budget.  NACWA is doing its best to shore up support for this vital program.  As states seek to develop and implement nutrient criteria, the need for the type of data provided by the NAWQA program is critical.  The Association will continue to update members on this effort as it proceeds.

NACWA Urges EPA Office of Water to Weigh in on SSI Rule; EPA, Sierra Club Oppose Stay Request

This week, NACWA staff met with Nancy Stoner, EPA Acting Administrator for Water, to urge her to engage with senior EPA leaders on NACWA’s petition for reconsideration on the sewage sludge incineration rule.  The meeting followed a letter NACWA sent to EPA Administrator Lisa Jackson on September 30, urging her to grant its petition for reconsideration of the final rule, arguing that the Clean Water Act should be the primary statute governing the disposal of sewage sludge – and that the Clean Air Act (CAA) only applies in the limited circumstances that Congress authorized, namely section 112 of the CAA.  Stoner at this point has not been involved in any deliberations about this issue within the Agency but said she would review our materials and consider next steps.  At the same time, NACWA is working with a number of Senators and Representatives to secure bipartisan letters from the Senate and House to Administrator Jackson in support of our petition for reconsideration.  NACWA will circulate this letter once it is finalized.

In related news, both the Sierra Club and EPA filed motions on October 11 opposing NACWA’s request for a stay to the final SSI rule.  Despite these motions, EPA has not yet provided a written decision on whether to reconsider all, or part, of the SSI rulemaking.  As a result, NACWA continues to pursue all regulatory and legislative avenues to convince the Agency to agree to the reconsideration.  NACWA will be providing additional information on the Sierra Club’s and EPA’s motions to the Sewage Sludge Incineration Advocacy Coalition (SSIAC) in the coming weeks.

Senator Cardin Introduces Legislation to Upgrade Water Infrastructure

Last week, Senator Ben Cardin (D-Md.) introduced the Water Infrastructure Resiliency & Sustainability Act of 2011, legislation to help communities fund needed system upgrades in order to adapt to changing hydrological conditions resulting from climate change.  The bill establishes a program through which wastewater and drinking water agencies are eligible for funding to undertake infrastructure projects to address challenges like drought, extreme wet weather and flooding, and rising sea levels—all of which will threaten water quality and quantity, as well as public health and the economy.  Senate Majority Leader Harry Reid (D-Nev.) and Barbara Boxer (D-Calif.), Chairman of the Senate Environment & Public Works Committee, have joined Senator Cardin in cosponsoring this bill.

This bill is the Senate counterpart to legislation by the same name introduced last August by Representative Lois Capps (D-Calif.), and is similar to a proposal incorporated in climate change legislation last Congress which NACWA helped to craft.  Though passage of any climate change legislation by this Congress is unlikely, this bill serves as an important marker for ensuring that the nexus between clean water management and climate change is clear.

Hotel Registration Deadline for Law Seminar Only One Week Away – Hurry and Register Today!

The hotel registration deadline for NACWA’s 2011 Developments in Clean Water Law Seminar is October 21, so register today and don’t miss out on this exciting conference!  This year’s Seminar will be held Nov. 16 – 18 at the Francis Marion Hotel in historic Charleston, South Carolina.  The program agenda will tackle some of the most pressing legal and regulatory issues facing clean water attorneys and professionals, as well as provide key practice tips from top clean water legal practitioners on how to address these growing challenges.

The Seminar will feature an in-depth examination of nutrient regulations and their impact on clean water utilities.  This panel will provide a national overview of the nutrient landscape while also drilling down and examining case studies from Florida, the lower Mississippi River Basin, and the Chesapeake Bay, including an analysis of how developments in these regions may have national legal and regulatory impacts.

Another Seminar panel will delve into the complex legal world of water quality issues, including designated uses, use attainability analyses, anti-degradation and anti-backsliding, and water quality trading.  Many clean water attorneys and practitioners find these water quality topics particularly complex.  This discussion will help provide some clarity to help municipal wastewater and stormwater utilities better navigate the complex legal and regulatory maze of water quality issues.

Other topics to be addressed at the Seminar include a review of key developments in the wet weather arena, tips on how clean water lawyers can better communicate with a variety of audiences, and a discussion of the most important Clean Water Act cases of the past year.  Additional information on the Seminar is available on NACWA’s website, including an updated agenda, an expanded list of states offering Continuing Legal Education (CLE) credits, and hotel reservation and conference registration information.  We look for to seeing you in Charleston!

NACWA Year-in-Review Available Online

NACWA’s Year-at-a-Glance was sent out via hard copy to members with their dues notices – but there is much more online!  Check out www.nacwa.org/yir to view flip-book versions of the Year-at-a-Glance and the more detailed Year-in-Review to explore the many accomplishments NACWA and its members have achieved over this past year.