» Clean Water Current Archive

November 18, 2011

NACWA Files Brief in Key Nutrients Litigation

NACWA filed a brief November 15 with the U.S. Court of Appeals for the First Circuit in an important case challenging EPA’s inclusion of contested nutrient limits in a federally issued National Pollutant Discharge Elimination System (NPDES) discharge permit.  NACWA filed the brief in support of Association member — the Upper Blackstone Water Pollution Abatement District (UBWPAD) in Massachusetts — and its challenge to the nitrogen and phosphorus limits included in the permit.

NACWA’s brief argues that EPA acted illegally and irrationally in setting nutrient limits in UBWPAD’s discharge permit – without regard to pending upgrades at the utility’s treatment plant and without consideration of the performance or environmental benefits of those upgrades.   In particular, the brief contends that EPA acted without legal basis in requiring UBWPAD to spend an additional $200 million in treatment plant upgrades to achieve the new nutrient limits before the completion of an already underway $180 million upgrade.  NACWA argues that this action by EPA is not justified and demonstrates a clear lack of appropriate prioritization of limited clean water utility resources.  The brief also supports UBWPAD’s contention that EPA erred in assigning the contested nutrient limits because it lacked a sound scientific basis and failed to demonstrate that the limits were necessary to achieve water quality standards.

The case stems from a permit issued to UBWPAD in 2008 and the litigation seeks to have the federal appeals court remand the permit back to EPA.  Additional information on this litigation will be available on the Litigation Tracking page of NACWA’s website early next week.

NACWA, Stakeholders Send Letter to EPA Offering Input into Integrated Planning/Regulatory Prioritization Framework

NACWA led an effort to encourage fellow organizations to sign on to a letter sent this week to Nancy Stoner, Acting Assistant Administrator for EPA’s Office of Water, and Cynthia Giles, Assistant Administrator for EPA’s Office of Enforcement & Compliance Assurance applauding their initial efforts  to craft an integrated planning framework.  The letter also urges the Agency to develop and stick to an expedited schedule to develop its framework.  The letter thanks EPA for sending the October 27 Memorandum on Achieving Water Quality through Integrated Municipal Stormwater and Wastewater Plans to EPA’s Regional Administrators and underscores the difficult economic times that municipalities and states currently face in meeting the obligations of the Clean Water Act.  The letter was signed by NACWA, the American Public Works Association (APWA), the American Water Works Association (AWWA), the Water Environment Federation (WEF), the American Society of Civil Engineers (ASCE) and other municipal groups.  NACWA believes the letter signifies the municipal community’s support for a new, more flexible approach by crafting an integrated permitting and regulatory prioritization Clean Water Act (CWA) framework.  EPA’s initiative on integrated planning was a compelling topic of discussion at NACWA’s Fall Strategic Leadership Retreat and Law Seminar this week in Charleston (see related articles).  The Association will continue to work closely with EPA in the coming weeks and will keep the membership updated on any developments as they occur.

NACWA Testifies on Role of Pretreatment Program in Shale Gas Fracking

NACWA testified at a November 16 hearing — Hydraulic Fracturing of Shale Beds: Ensuring Regulatory Approaches that Will Help Protect Jobs and Domestic Energy Production — before the House Committee on Transportation & Infrastructure’s Subcommittee on Water Resources & Environment.  Martie Groome, Vice Chair of NACWA’s Pretreatment & Pollution Prevention Committee, and Laboratory & Industrial Waste Supervisor for the City of Greensboro Water Resources Department, N.C., provided testimony on behalf of NACWA.  The other witnesses were Cynthia Dougherty, Director, Office of Ground Water & Drinking Water, EPA; Jim Hanlon, Director, Office of Wastewater Management, EPA; Michael Krancer, Secretary, Pennsylvania Department of Environmental Protection; Tom Steward, Executive Vice President, Ohio Oil and Gas Association; and Dana Murphy, Chair, Oklahoma Corporation Commission.

The hearing was held in part due to EPA’s recent announcement in its Final 2010 Effluent Guidelines Program Plan that the Agency would develop national pretreatment standards for hydraulic fracturing (or “fracking”) wastewater being sent to publicly owned treatment works(POTWS) or being directly discharged.  NACWA’s testimony focused on how the pretreatment standards might enable clean water agencies to accept fracking wastewater, while also emphasizing that utilities could develop their own local limits to handle discharges from any industry that does not have national standards set by EPA.  The other witnesses discussed the long safety record of fracking and agreed that there are no known cases of drinking water contamination from the practice.  The questions from the Subcommittee focused mostly on the reasons why EPA has decided to examine this industry for pretreatment standards now, the potential impacts of pretreatment standards and other regulations on jobs and the economy, and the role of the states versus the federal government in the regulation of fracking.  Groome was asked questions about the role of local utilities in treating fracking waste, responding with explanations about how utilities can protect their operations and the environment by either developing local limits for total dissolved solids and other potential contaminants in fracking wastewater or refusing to accept the waste if they are not equipped to treat it.

NACWA has gathered member input on EPA’s Final 2010 Effluent Guidelines Program Plan, as requested in Advocacy Alert 11-24, and will be submitting comments on the Plan next week.  NACWA will closely follow the development of the pretreatment standards for fracking wastewater and will keep members informed of EPA’s progress.

NACWA Law Seminar Addresses Key Legal Issues Impacting Utilities

NACWA’s 2011 Developments in Clean Water Law Seminar drew a large crowd this week in Charleston, S.C., and featured top clean water attorneys from across the nation who joined together to explore the most critical legal and regulatory issues currently facing the municipal clean water community.  The Seminar kicked off with a keynote address from John Cruden, president of the Environmental Law Institute (ELI), who reviewed the most important environmental cases decided by the Supreme Court over the last year and also provided a preview of the key cases the Court is expected to review this year.   He provided critical insight into the impacts of the cases for the entire environmental law community.   Alexandra Dunn, Executive Director and General Counsel for the Association of Clean Water Administrators (ACWA), also addressed Seminar participants on the first day and discussed ways clean water utilities can improve their relationships with state regulators and pursue more innovative approaches to water quality improvement.

Among the many panel presentations at the Seminar was an examination of how clean water agencies that are currently under wet weather consent decrees can pursue reopeners of those agreements.  Speakers from Indianapolis, New York City, and Washington, DC, discussed the significant legal issues involved in reopening their decrees and offered valuable advice to other communities seeking to pursue similar actions.  Another panel presentation at the conference focused on wet weather issues, including a comprehensive review of current developments in the municipal stormwater arena and a discussion of ongoing litigation addressing the payment of stormwater fees by federal government agencies.  This panel also examined EPA’s current efforts on the sanitary sewer overflow (SSO) front.  Additional topics covered at the Seminar included biosolids management, nutrients, communication, and water quality issues.

The conference wrapped up with a presentation from Mark Pollins of EPA’s Office of Enforcement & Compliance Assurance(OECA) and Deborah Nagle of EPA’s Office of Water discussing the Agency’s upcoming efforts to pursue an integrated approach to clean water planning and permitting.  The EPA officials outlined how the Agency plans to move forward with this new initiative, including the planned release of a framework document this year that will provide additional details.  Seminar participants then questioned EPA on elements of the Agency’s plan and emphasized the need for EPA to work with the regulated community to ensure that the integrated planning effort is a success.  The final day of the conference also featured a robust panel discussion on current enforcement issues impacting clean water utilities.

Handouts and presentations from the Seminar are available on NACWA’s website.

Association Leaders Meet in Charleston – Look toward the Future

NACWA’s Board of Directors and Standing Committee leaders met in Charleston, South Carolina, this week for the Association’s Fall Strategic Leadership Retreat.  On the agenda was a ‘mega issue question’ from NACWA’s Strategic Plan – How does NACWA maintain its relevance into the future?  The Association leaders explored this question by considering the issues currently confronting the water sector – the challenge of developing financially and environmentally sustainable infrastructure; globalization’s impact on changing economics; the increasing impact of climate change on utilities; scarcity and competition for water; and changing demographics that require new and diverse skill sets and experiences.

With this backdrop, NACWA’s leadership focused their attention on the Association’s advocacy agenda and in particular the significant strides currently being made through its Money Matters. . . Smarter Investment to Advance Clean Water™ regulatory prioritization campaign.  The need to increase awareness of the important role played by clean water agencies in not only environmental protection, but also environmental leadership, received considerable attention, as did collaboration among national, state, and local organizations to achieve key strategic goals.  The role of technology in NACWA’s future (see related article) and communications as a key strategic component were also a central part of the dialogue.

A summary report of the deliberations is currently being prepared.  This summary will serve as a touchstone for revisiting the key goals, objectives and strategies contained in the FY 2012 Association Business Plan – as well as NACWA’s Strategic Plan itself.

NACWA Board Endorses Strategic Integrated Technology Plan

NACWA’s Board of Directors met for their fall meeting on November 13.  Much of their deliberations focused on the important role technology must play in NACWA’s future.  Among their actions was the adoption of an amendment to the FY 2012 Association Business Plan adding a new Key Management Focus – Bridge NACWA’s Technology Gap and Build a Framework for the Future.  The amendment speaks to the increasingly critical role that technology, particularly internet-based systems and platforms, will play in NACWA’s relevance and performance.  During their meeting, the Board built upon this action by endorsing a Strategic Integrated Technology Plan that will strengthen the Association’s capacity to achieve its organizational goals and add significant value to NACWA’s membership.  The Plan, which includes both technology upgrades and NACWA engagement in strategic social media and outreach initiatives, will be implemented over the coming months.

Henifin, St. Pierre Named to NACWA’s Board

Ted Henifin, General Manager, Hampton Roads Sanitation District (HRSD) and David St. Pierre, Executive Director, Metropolitan Water Reclamation District (MWRD) of Greater Chicago were named to At-Large seats on NACWA’s Board of Directors this week.  Henifin has served as HRSD’s General Manager since 2006.  During that time he has continued HRSD’s stellar record of support for, and engagement in, NACWA.  Named Executive Director of the MWRD of Greater Chicago in June of this year, David St. Pierre is well-positioned to continue MWRD’s long-standing leadership in the organization, having come to Chicago by way of positions at NACWA Member Agencies the City of Atlanta, as Deputy Commissioner of the Department of Watershed Management, and the Metropolitan St. Louis Sewer District, as Operations Director.  NACWA President, David Williams, made the appointments, noting “I am certain that Ted and David will continue to distinguish themselves both within our organization and the clean water community as a whole.”

Henifin and St. Pierre join Howard Neukrug, a national leader for sustainable practices and quality management in the water industry and Commissioner of Philadelphia’s Water Department, appointed to the Board in July, as the Association’s newest Board Members.  We welcome them to the Board and thank them for their service.

NACWA to File Brief in Stormwater Case

In other action, NACWA’s Board approved filing an amicus curiae brief in support of Association member the City of Vancouver, Washington, in litigation with the federal government over the failure of a federal facility to pay municipal stormwater fees.  The Board viewed NACWA’s participation in this case as critical to defend the Association’s hard-fought victory in securing passage of S. 3481, which amended section 313 of the Clean Water Act to clarify that federal government facilities are responsible for paying local stormwater service charges.  In particular, NACWA’s amicus brief will emphasize that S. 3481 simply clarified an existing obligation for federal government agencies to pay local stormwater fees, as opposed to creating a new obligation, and thus requires payment of past due amounts.  NACWA Members will be kept apprised as this case progresses.