May 2012 Regulatory Update

To:	Members & Affiliates, Regulatory Policy Committee
From:	National Office
Date:	June 4, 2012

The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the May 2012 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to the end of May 2012. Please contact NACWA’s Chris Hornback at 202/833-9106 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it or Cynthia Finley at 202/296-9836 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it with any questions or information on the Update topics.

Air Quality

NACWA Brief in DC Circuit Court Seeks Approval of EPA’s Biogenic Emissions Deferral

NACWA filed an amicus curiae brief May 22 in Center for Biological Diversity (CBD) v. EPA, currently before the U.S. Circuit Court for the District of Columbia Circuit. In the lawsuit, the Association supports EPA’s three-year deferral of biogenic carbon dioxide (CO2) emissions from Clean Air Act (CAA) Title V and Prevention of Significant Deterioration (PSD) permitting requirements. The deferral specifically applies to emissions from the wastewater treatment process and the combustion of biogas and biosolids, as well as to combustion of other biomass, such as agricultural and forest products. CAA regulation of greenhouse gas (GHG) emissions began in January 2011, and the biogenic emissions deferral was finalized in July 2011 to give EPA additional time to determine how these emissions should be regulated. EPA has convened a Science Advisory Board (SAB) expert panel to study the issue.

While the CBD lawsuit focuses on biogenic emissions from the combustion of forest and other plant products, it does not differentiate between sources when asking that the deferral be vacated. NACWA’s brief explains why biogenic emissions from POTWs are different in nature from other biogenic emissions due to the short carbon cycle associated with human waste and the unavoidable nature of the emissions, which would occur regardless of POTW processing. The Association also explained the burden that would be placed on POTWs if the deferral was vacated and utilities were forced to comply with Title V and PSD permitting, monitoring, and reporting requirements. Additional background information on this lawsuit is available in Advocacy Alert 12-07. NACWA will keep members informed of developments with this lawsuit and any decisions made regarding POTW emissions.

Biosolids Management

NACWA, WEF Recognize National Biosolids Partnership Certification for Knoxville Utilities Board

NACWA, along with its partner the Water Environment Federation (WEF), presented the Knoxville Utilities Board (KUB) with a certificate recognizing KUB for achieving third party verification and National Biosolids Partnership (NBP) certification for its biosolids environmental management system (EMS) during a ceremony in Knoxville May 16. Mintha Roach, KUB President and Chief Executive Officer and Bill Elmore, KUB Executive Vice President and Chief Operating Officer, accepted the certificate on behalf of KUB. KUB’s program becomes the 34th in the U.S. and the second in Tennessee to be certified. During the ceremony, NACWA commended KUB for its “willingness to go above and beyond what the Clean Water Act requires”, noting that KUB’s commitment to excellence in biosolids management “exemplifies why KUB is a leader in the clean water community.” NACWA again congratulates KUB and its employees on this significant achievement.

Climate Change

NACWA Asks EPA to Reconsider Regulations as Part of Climate Change Strategy

NACWA submitted comments May 17 on EPA’s draft National Water Program 2012 Strategy: Response to Climate Change (Strategy), recommending that the Agency consider how its current Clean Water Act regulations can incorporate a more holistic, watershed approach to water quality protection, which will allow for a more thoughtful approach to addressing the potential impacts of climate change. The National Water Program (NWP) published its original Strategy in 2008, identifying near-term actions to address climate change impacts on water resources and utilities. The 2012 Strategy describes longer-term goals and the actions the NWP will take to achieve these goals.

In its comments , NACWA commended the NWP for establishing goals for protecting watersheds but emphasized that “the existing Clean Water Act regulatory structure will make these goals difficult to achieve unless broad and substantive changes are made to the way we approach water quality protection.” For example, the NWP states in the Strategy that one of its actions will be to “promote the consideration of climate change impacts by NPDES permitting authorities,” including incorporation of revised low-flow stream estimates into permit effluent limit development. NACWA pointed out that EPA should instead “be looking at better, more appropriate ways to protect water quality in both wet and dry weather periods.” While EPA has taken a step in the right direction with its recent integrated planning initiative, comprehensive watershed-based reform will be required to enable true prioritization of actions to improve the water environment, including control of all pollution sources, while also seeking to minimize the municipal carbon footprint.

NACWA also stated that regulations may need to be changed to meet the NWP’s goal of reducing greenhouse gas (GHG) emissions and increasing use of renewable energy resources. Biosolids and biogas must be fully recognized as renewable fuels and utilities must not be penalized by CAA regulations for using these fuels. This will require the NWP to work with EPA’s Office of Air and Radiation to be sure that GHG and other CAA regulations do not discourage the use of biosolids and biogas as renewable fuel options. Reducing barriers to using biosolids as fertilizer reduces dependence on synthetic fertilizers, resulting in a decrease of GHG emissions from synthetic fertilizer production, and utilities should benefit from this use of biosolids.

Finally, NACWA cited the 2009 NACWA/Association of Metropolitan Water Agencies (AMWA) study, Confronting Climate Change: An Early Analysis of Water and Wastewater Adaptation Costs , which estimated adaptation costs between $448 and $944 billion through 2050. As stated in the comments, “EPA should consider more carefully the financial resources that utilities will need to meet the Agency’s climate change goals in addition to the utilities’ existing water infrastructure needs.” NACWA will continue to work with EPA on ways to help utilities adapt to climate change and will keep members informed of any developments.

Conferences and Meetings

Nutrient Webinars to Highlight Recent Litigation, National Policy Developments

Nutrient policy issues remain front and center for the Nation’s clean water utilities and two new lawsuits are signaling an aggressive push to further ratchet down on point sources. This series of two one-hour webinars will explore both technology-based and water quality based approaches to nutrient control, two new lawsuits that are designed to put pressure on the U.S. Environmental Protection Agency (EPA) on both of these fronts, and the continued efforts to seek meaningful participation from the largest source of nutrients in most watersheds – agriculture.

Nutrients – Are Technology Controls the Solution? – Wednesday, June 20, 2012, 2:00 pm Eastern

This webinar will explore the continued focus on technology-based approaches to nutrient control by the environmental NGO community and some states. Jon Devine from the Natural Resources Defense Council (NRDC) will outline why the NGO community believes a national, technology-based approach should be put in place. NACWA will then respond to provide the clean water utility perspective as the Association moves to intervene in NRDC’s related lawsuit. Mike Tate, Chief, Bureau of Water, Kansas Department of Health and Environment, will discuss Kansas’ technology-driven program for controlling nutrients and the role the broader state community feels technology-based controls may play.

Nutrients – Give Water Quality a Chance – Wednesday, June 27, 2012, 2:00 pm Eastern

Where technology-based controls are not sufficient to meet water quality standards, the Clean Water Act requires that water quality-based controls be imposed. Ellen Gilinsky, Senior Policy Advisory for EPA’s Office of Water, has been overseeing the Agency’s efforts on nutrients for the past year and will provide an update on the latest policy perspectives from EPA and the progress that has been seen throughout the U.S. Recent litigation to compel EPA to develop numeric nutrient criteria and total maximum daily loads (TMDLs) for the Mississippi River Basin and Gulf of Mexico has again underscored the limits of the Clean Water Act to deal with this issue. While 80-90 percent of the nutrient load to the Mississippi and Gulf are from nonpoint sources like agriculture, the only definitive result from the development of federal numeric criteria and TMDLs would be more onerous requirements for clean water utilities. Richard Budell with the Florida Department of Agriculture and Consumer Services will discuss efforts at the state level to secure more meaningful and equitable reductions of nutrient loads from nonpoint sources like agriculture.

For members, registration is $250 for the two-part series, or $350 for non-members. We invite you to gather your staff together in a group learning environment for these exceptional high-value seminars. Don’t delay, register today!

Register Today for NACWA’s 2012 Summer Conference

Join us in historic Philadelphia for Transformational Leadership . . . . Changing the Game for the Next 40 Years of Clean Water, July 15 – 18 at the Hyatt Regency Philadelphia at Penn’s Landing. Best-selling author David Nour’s conference keynote, Return on Impact – Leadership Strategies for the Age of Connected Relationships, will set the stage for an exploration of the tools available in the social networking/social media environment to align organization goals and objectives with stakeholder values to drive quantifiable results – all part of the transformational change taking place throughout the clean water community. NACWA’s own Engage network will be publicly launched – providing a value-added experience for members and significantly enhancing the Association’s effectiveness in the advocacy arena.

The 2012 Summer Conference’s focus on transformational leadership will showcase innovative work now underway at clean water agencies, and look ahead at how water quality protection and utility management will change in the coming months and years. Its compelling program will explore the emerging image of the ‘Utility of the Future’; feature the tools and approaches needed to continue to build on the water quality gains; and, examine real-world economic hurdles to innovation – as well as efforts to craft more financially sustainable utility business models. Registration is now available! Visit NACWA updated and enhanced Summer Conference page for the preliminary program and more. Please join us for this exceptional conference.

Integrated Planning and Affordability

NACWA Applauds Proposed Agreement to Extend Atlanta Consent Decree by 13 Years

The City of Atlanta recently announced a proposed agreement with the United States and the State of Georgia to extend its existing wet weather consent decree by an additional 13 years, providing the City with much-needed regulatory and financial flexibility as it continues its work to reduce wet weather sewer overflows. The proposed agreement – which could open up similar opportunities for other cities – extends the final completion date for the consent decree from July 2014 to July 2027, but does not require Atlanta to complete any additional projects beyond those already agreed to in the original 1999 decree.

The extension of the completion date acknowledges the substantial investment of over $1.5 billion the City has already made to reduce sewer overflows and will allow Atlanta to complete work on the consent decree in a manner that recognizes the significant economic burden facing the City and its ratepayers. The modification will help alleviate the financial impact of the additional $445 million necessary to finish work related to the consent decree. The proposed agreement was negotiated in consultation with local non-governmental environmental organizations and is currently awaiting formal approval by the City Council. Once all parties have approved it, the agreement will be lodged in federal court and released for public comment.

NACWA applauds the proposed agreement, which is consistent with NACWA’s advocacy on utility financial capability and the Association’s ongoing Money Matters…. Smarter Investment to Advance Clean Water™ campaign. NACWA is hopeful that this important agreement signals growing recognition from EPA enforcement and the Department of Justice that the ability of the Nation’s municipalities to pay for Clean Water Act mandates has its limits. NACWA will continue to keep the membership updated on developments.

Pretreatment & Pollution Prevention

NACWA Pretreatment & Pollution Prevention Workshop Examines Successes and New Challenges

At NACWA’s Pretreatment & Pollution Prevention Workshop, May 9-11, in Pensacola, Florida, speakers took a look back at thirty years of pretreatment program history and looked ahead to the expanding role of the program. Keynote speaker Jeff Lape, Deputy Director of EPA’s Office of Science & Technology in the Office of Water, highlighted the contributions of the program to improved water quality and explored ways that pretreatment professionals can work with the industries that they regulate to innovate and bring benefits to both parties. NACWA Executive Director, Ken Kirk, reflected on NACWA’s long involvement with EPA on the pretreatment program and how some of the issues from the past – such as the debate over local limits versus national standards – are still issues today, while a new array of complex issues continues to arise.

Panelists addressed an array of challenges. Fats, oils, and grease (FOG) have long plagued sewer systems, and Gabe Brown from the Emerald Coast Utilities Authority (ECUA) provided a case study of his utility’s multi-pronged approach to keeping FOG out of the sewer. In addition to the standard role of pretreatment programs in regulating food service establishments, ECUA also participates in extensive public education through school programs, billboards, and radio and television segments. ECUA has also established drop-off and curbside pick-up programs for residential FOG. Many utilities have also experienced an increase in problems from consumer products that do not disperse in the sewer system, such as baby wipes and paper towels. Rob Villee of the Plainfield Area Regional Sewerage Authority, New Jersey, and chair of the Water Environment Federation’s (WEF) Collection System Committee, provided an update on studies done in cooperation with INDA, the non-woven fabrics association, to assess the types of products that are causing these problems. NACWA’s Pretreatment & Pollution Prevention Committee will continue to work with WEF to gather data about the problems caused by these products.

Hydraulic fracturing, or “fracking,” was another new issue that generated significant discussion among Workshop participants. Tom Grimshaw, Research Fellow at the University of Texas at Austin’s Energy Institute, gave a thorough overview of the fracking process and the research done by the Energy Institute on media coverage, public perception, and environmental impacts of fracking, as well as current industry regulations. Grimshaw emphasized the need for future regulations to be based on good science, and not on the negative media coverage of issues and the sometimes overstated environmental impacts from the fracking process. Jan Pickrel, EPA’s National Pretreatment Program Coordinator, reminded utilities to use proper evaluation procedures if they are approached to accept fracking wastewater, and to remember to report any new chemicals accepted for treatment – whether from fracking or any other industry – to their permitting authority.

The PowerPoint presentations from the Pretreatment Workshop are available on NACWA’s webpage. NACWA thanks all the participants for making this year’s Workshop a success.

Security & Emergency Preparedness

Coordinating Council Discusses Vulnerability Assessment Tools with EPA and DHS

The Water Sector Coordinating Council (WSCC) met on May 23, followed by a joint meeting with the Government Coordinating Council (GCC) on May 24, to discuss security and emergency preparedness issues of concern to the nation's wastewater and drinking water utilities. NACWA’s representatives to the WSCC, Patty Cleveland, Assistant Regional Manager with the Trinity River Authority, Texas and a NACWA Board member, and Jim Davidson, Manager of Safety & Security with the Northeast Ohio Regional Sewer District, Ohio, participated in the meeting.

Among the major topics of discussion were vulnerability assessment (VA) tools. In previous meetings, the WSCC has expressed the desire to have at least one VA tool available for the water sector that is compliant with the J100 Risk & Resilience Management of Water and Wastewater Systems standard. The existing tools VSAT, ARAM-W, and SEMS would all need to be upgraded to be J100-compliant, while a new open source VA tool, currently being developed by a private company, will be J100-compliant. EPA and the Department of Homeland Security (DHS) prepared cost-estimates for upgrading the existing tools and agreed to support either an upgrade for one tool or the open source tool. The WSCC sent a letter to EPA and DHS, asking that these agencies come to a resolution soon about which tool would be supported with any necessary upgrades, technical support, and training. The letter also requested that the tool be usable by all sizes of utilities. During the joint WSCC-GCC meeting, EPA stated that it would be examining the open source VA tool in June and would provide more information to the WSCC at that time. NACWA will inform members of any decisions made regarding the VA tools and members may contact Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it with any questions.

Utility Management

EPA, Water Sector Organizations Discuss Utility Sustainability

On the heels of releasing Planning for Sustainability: A Handbook for Water and Wastewater Utilities , EPA brought together the major water sector organizations May 15 to discuss potential gaps in promoting greater water utility sustainability. Participants included the Executive Directors and key staff from NACWA, the Water Environment Federation (WEF), the Association of Metropolitan Water Agencies (AMWA), the American Water Works Association (AWWA), the American Public Works Association (APWA), the National Association of Water Companies (NAWC), and the National Rural Water Association (NRWA), as well as representatives for state drinking water and clean water program administrators. EPA expressed a desire to build off of its successful collaboration with many of the water sector groups to develop and release the Ten Attributes of Effectively Managed Water Sector Utilities (see www.watereum.org).

Now five years since those attributes were first released, meeting participants discussed what additional work, if any, was needed on the attributes – especially to increase their use/adoption by small and mid-size utilities. The water sector organizations present agreed that utilities of all sizes are facing intense pressures as they work to collect the revenue necessary to maintain service and repair their infrastructure. Powerful political dynamics are making rate increases difficult and declining water use due to conservation efforts combined with volumetric-based rate structures are leading to declines in utility revenues. Wastewater utilities are facing added challenges associated with massive, enforcement-driven capital projects that threaten community financial capability and affordability limitations. Taken together, all of these challenges and financial pressures are making it increasingly difficult to explore new and innovative approaches that might enhance long-term sustainability. Following a productive discussion, the water sector organizations and EPA committed to another meeting among staff to discuss potential next steps, including a potential dialogue of utility representatives to discuss the broad issue of water utility sustainability.

NACWA Releases NACWA Service Charge Index Survey Results

The results from NACWA’s 2011 Service Charge Index survey are now available and suggest that utilities continue to fund needed infrastructure repairs despite the current economic conditions. In fact, for the past decade the increase in the average cost of wastewater services for a single-family residence has outpaced the rate of inflation as measured by the Consumer Price Index (CPI). In 2011, the average service charge increased by 5.8 percent, while inflation increased by only 3.2 percent over the survey period, with the average single family’s annual cost for wastewater services topping $389. The new, all electronic format for the Index has enabled the addition of information on regional variations in sewer charges and a more detailed analysis of the results. The latest version of NACWA’s triennial Financial Survey, scheduled for release in July, will contain more detailed analysis of sewer charges nationally as well as the underlying rate structures. Thanks to all Member Agencies who responded and helped to make the Index informative and valuable to the clean water community.

EPA Webcast on Utility Sustainability to Feature NACWA Members

EPA is hosting a series of webcasts based on its new handbook, Planning for Sustainability: A Handbook for Water and Wastewater Utilities , released in February. The first webcast, scheduled for Tuesday, June 12, from 1:00 to 2:30 pm Eastern, will include an overview of the handbook, as well as perspectives and examples from NACWA member utility managers, Andy Kricun, Executive Director, Camden County Municipal Utility Authority, N.J., and Tom Sigmund, Executive Director, Green Bay Metropolitan Sewerage District, Wis., who were involved in the development of the handbook. The handbook describes a series of core elements and steps utilities can take to build sustainability considerations into their existing planning processes. Registration for the free webcast is available now at https://www1.gotomeeting.com/register/519632424. EPA’s flyer on the webcast includes additional information and a list of future webcast topics and dates.

Water Quality

NACWA Talks Strategy in Kick-Off Call of Water Quality Trading Working Group

As the country looks for innovative solutions to deal with nutrient over-enrichment and other pollutants in our waterways, water quality trading offers an important approach that is garnering increased attention. NACWA recently formed a Water Quality Trading Working Group to provide a forum for members interested in shaping the discussion on trading and to ensure a strong voice for the point source perspective on the ability of the marketplace to achieve real water quality improvements. The group is being led by Dave Taylor from the Madison Metropolitan Sewerage District, Wis., and all interested NACWA members are encouraged to participate. The Working Group’s first conference call pinpointed some of the complex barriers to water quality trading and focused in on opportunities for NACWA engagement. The group’s first task will be to review the 2003 EPA Water Quality Trading Policy guidance document and provide the Agency with feedback. To share information regarding this guidance document, or to join the Water Quality Trading Working Group, please email Hannah Mellman at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

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