October 2012 Regulatory Update

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To:	Members & Affiliates
From:	National Office
Date:	November 5, 2012

The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the October 2012 Regulatory Update. This Update provides a summary of relevant regulatory issues and actions current to the end of October 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 with any questions or information on the Update topics.

Top Stories

NACWA Raises Concerns as EPA Works to Finalize Recreational Water Quality Criteria

While generally supporting the approach EPA used in its December 2011 proposed recreational water quality criteria (RWQC), NACWA wrote to Nancy Stoner, Acting Assistant Administrator for Water October 31 to express concerns about new analyses the Agency was conducting to evaluate potential changes to the criteria values proposed in 2011. In its letter

NACWA stressed that EPA’s methodology for proposing the RWQC was reasonable given the information the Agency was able to collect in the time it had available. For five years now NACWA has been engaged in the underlying lawsuit related to the Beaches Environmental Assessment and Coastal Health (BEACH) Act that is driving EPA’s work on the RWQC (Natural Resources Defense Council v. EPA). The timeframe, however, that EPA eventually agreed to when it settled the lawsuit was very aggressive and tied the Agency’s hands in many ways with respect to data collection and analysis.

In response to its December 2011 proposal, EPA received a record number of comments, including many that were critical of the proposed criteria levels that were nearly identical to the existing 1986 criteria. EPA redoubled its efforts over the last several months to review its data using different analytical approaches to see what, if any, changes from the proposal could be supported. As NACWA has previously reported, EPA specifically was analyzing the data to determine whether a criterion more stringent than the current enterococcus geometric mean of 35 cfu/100 ml could be supported. NACWA’s letter stressed that implementation of the criteria would be further complicated by any changes: “Widespread adoption of criteria based on enterococcus will have a major impact…and lowering the criteria below the 1986 values – which EPA has shown to be protective – will further complicate implementation with no evidence that there will be a commensurate increase in public health protection.” EPA is now facing a November 30 deadline to finalize the criteria.

NACWA Meets with Key EPA Staff to Discuss Translation of Narrative Nutrient Criteria

NACWA staff and the leaders of the Association’s Water Quality Committee met October 25 with Ellen Gilinsky, Senior Policy Advisor for EPA’s Office of Water, and key Office of Water staff, to discuss ongoing efforts by the Agency to push states to develop numeric effluent limits for clean water utilities based solely on an interpretation of existing state narrative nutrient criteria. NACWA expressed concern that such efforts would bypass the more public process involved in the development of statewide numeric nutrient criteria (NNC) and unfairly target point sources in an effort to show that EPA is making progress on nutrients. EPA staff expressed continued frustration with the slow progress that states are making on the development of NNC, and indicated that this new push by EPA is consistent with its ongoing efforts to make progress, wherever possible, on nutrient pollution while NNC development work continues.

EPA’s Clean Water Act (CWA) permitting regulations (122.44(d)(vi)) require permitting authorities (delegated states or EPA) to evaluate the potential of discharges to exceed any narrative water quality criteria and to develop numeric effluent limits for discharges where that potential exists (i.e., reasonable potential). This provision has been used only sporadically to impose numeric nutrient limits on point sources, but EPA – under the banner of the March 2011 memorandum on nutrients (the so- called ‘Stoner Memo’) which seeks to make more immediate progress – is now making a coordinated effort to push states to use the provisions in 122.44(d)(vi) to impose numeric limits on clean water utilities in states where statewide numeric nutrient criteria have not yet been developed.

The first effects of this push are being felt in Region 1 where the Region issues permits in two states. One of these permits, developed for the Upper Blackstone Water Pollution Abatement District, is already the focus of a legal challenge and other permits in New Hampshire – where numeric interpretations of narrative criteria have also been used – are likely to be challenged. EPA is planning to develop tools to help states interpret their narrative criteria and develop numeric effluent limits. NACWA urged the Agency to include the clean water community in any discussions that might lead to more widespread translation of narrative nutrient criteria. EPA’s Technical Support Document for Water Quality-Based Toxics Control (TSD, March 1991) provides some technical discussion on how such translation can be accomplished, but is not specific to nutrients and the variable impacts nutrients can have in different watersheds. The Agency is now evaluating how the information in the TSD can be modified to apply to nutrients. EPA was considering developing a guidance document for states, but has abandoned that effort in favor of training or webinar-based dissemination of the information. NACWA’s Water Quality Committee will be discussing the Association’s next steps on this issue in the coming weeks.

NACWA, Water Sector Organizations Discuss Key Initiatives with EPA

NACWA and representatives from several other water sector organizations, including the Association of Metropolitan Water Agencies (AMWA), the National Association of Water Companies (NAWC), the Water Environment Federation (WEF) and the Water Environment Research Foundation (WERF), met with Ellen Gilinsky, Senior Policy Advisor for EPA’s Office of Water, and key water office staff October 11 to discuss a range of issues. At the top of the agenda was the NACWA, WEF and WERF collaboration on the Water Resources Utility of the Future. EPA expressed an interest in being engaged in the initiative and noted the many complementary efforts on sustainable utilities underway at the Agency.

During a discussion on integrated planning, which included an update on the planning for the October 24 Region 3 workshop convened by NACWA and the Association of Clean Water Administrators (ACWA) (see related story below), EPA noted that it plans to initiate a dialogue with the U.S. Conference of Mayors on the issue of affordability in the context of consent decree negotiations and integrated planning. The Agency also updated the organizations on its ongoing Importance of Water effort that is exploring water’s impact on the U.S. economy. A synthesis report from a September 19, 2012 technical workshop will be available by the end of November and the Agency is planning a Public Symposium on the issue at American University on December 4, 2012. Registration for the symposium is open and can be accessed at http://water.epa.gov/action/importanceofwater/registration.cfm. During the meeting EPA also confirmed that Peter Grevatt will be the new director of the Office of Ground Water & Drinking Water in the Office of Water. Grevatt, who currently serves as the Director of the Agency’s Office of Children’s Health Protection, replaces long-time director Cynthia Dougherty who retired earlier this year.

Biosolids

EPA Files Brief in SSI Litigation, NACWA to Respond

EPA submitted its brief October 22 in litigation initiated by NACWA to challenge the Agency’s final sewage sludge incinerator (SSI) rule, outlining its defense of the flawed regulation. The document responds to arguments raised by NACWA in its opening brief , filed with the court in July. NACWA is in the process of completing a detailed analysis of EPA’s brief. An initial review, however, suggests that the Agency has not raised any new or unexpected arguments.

The Agency’s brief defends the rule as being both legally and technically-sound, and its arguments in favor of the rule are consistent with its prior positions. Some of EPA’s arguments – particularly with regard to NACWA’s statutory claims – are weaker than anticipated and provide the Association with excellent opportunities to push back on the Agency’s position. EPA also failed to address a number of critical NACWA-identified weaknesses in the SSI rule, suggesting serious vulnerabilities in the rule’s statutory underpinnings.

NACWA will file a reply brief in response in the coming weeks, and is developing a robust set of arguments to include in that document. The Association’s reply brief will be filed by December 6. All briefing in the case is expected to wrap up by the end of December, with oral arguments likely being held sometime in the first quarter of 2013. Additional information on the case can be found on the Association’s Litigation Tracking webpage.

Conferences and Meetings

NACWA, ACWA Convene Region 3 Workshop on Integrated Planning

In the first of what will be a series of regional workshops, clean water agencies and state regulators from the EPA Region 3 states gathered October 24 in Washington, DC, with EPA Headquarters and Region 3 staff to discuss the Agency’s integrated planning framework. Convened by NACWA and the Association of Clean Water Administrators (ACWA), the workshop provided utilities – whether considering the development of an integrated plan or already in the throes of working on one – with an opportunity to discuss implementation issues, barriers and lessons learned.

The facilitated discussion during the workshop provided the clean water agencies in attendance an opportunity to direct questions to state water regulators as well as EPA Headquarters and Region 3 staff and helped to identify potential bottlenecks within EPA and the state regulatory agencies that will need to be addressed to better facilitate the development and approval of integrated plans. Stakeholder involvement – who to involve and when – was one of the major discussion topics. Utilities also highlighted the challenges of integrating stormwater and wastewater issues when different municipal authorities have responsibility for these function, or where different state agencies are responsible for the permitting of these two programs. EPA and ACWA have expressed their interest in, and commitment to, additional workshops in other regions around the country and NACWA is working to identify potential dates and locations. NACWA will provide the complete schedule when it becomes available.

Security/Emergency Preparedness

NACWA Hosts International Standards Community Meeting on Water & Wastewater Security

Nearly 20 representatives from around the globe gathered at the NACWA’s office October 24 and 25 to continue work on an international standard to guide security efforts at water and wastewater utilities worldwide. NACWA has been involved in several International Organization for Standardization (ISO) efforts related to water and wastewater utility management and has been an active participant in the ongoing crisis management work in an effort to ensure that any international standards are consistent with, and do not present conflicts for, utility practices in the United States. This was the first time the U.S. Delegation, which includes NACWA representative, Jim Davidson, Manager of Safety & Security for the Northeast Ohio Regional Sewer District, had hosted a meeting. The workgroup had a productive session as it continues its work drafting the standard. NACWA will continue to update members on the development of this standard.

Water Quality

NACWA Meets with EPA to Discuss Water Quality Trading

NAWCA met with EPA on October 12 to discuss recommendations that NACWA’s Water Quality Trading Working Group submitted to the Agency in July regarding its Water Quality Trading Policy. Specifically, NACWA urged EPA to clarify language regarding total maximum daily loads (TMDLs) and agricultural baseline requirements which the Association fears could limit trading and the broader establishment of regional water quality trading programs. While EPA has no plans to revise the Policy in the near future, NACWA was encouraged by the Agency’s interest and pledged to continue working with the Agency on trading programs and policies that will yield tangible water quality improvements while addressing POTW affordability concerns.

EPA to Host Water Quality Trading Forum

EPA also noted that it will be hosting a web-based Water Quality Trading Forum on November 28, from 11:00am – 5:00pm EST. NACWA has been asked to present on behalf of potential credit ‘buyers’ in a water quality trading program, as well as comment on what the Association feels would best advance trading. The Association encourages its members to participate in this forum and will circulate a draft agenda and registration information as soon as they become available. To join NACWA’s Water Quality Trading Working Group, please contact Hannah Mellman at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

NACWA Urges Open Stakeholder Dialogue for Pesticide Registration Review

NACWA expressed concern in an October 16 letter to EPA’s pesticide office over proposed ‘focus’ meetings at the start of the Agency’s pesticide registration review process. As proposed, the meetings would be limited to pesticide manufacturers and closed to broader stakeholder participation. NACWA has been engaged in EPA’s work on toxic substances and pesticides for several years to ensure the Agency accurately accounts for potential impacts on the clean water community during all phases of its chemical review, approval and registration processes. Without the appropriate controls and restrictions based on a full understanding of these impacts, pesticides and other toxic substances that make their way into the sewer can result in biosolids management issues and/or violations of Clean Water Act permit requirements. In its letter, NACWA recommended that EPA make participation in the ‘focus’ meetings available to all interested stakeholders, not just to pesticide registrants. Interested stakeholders would include wastewater treatment facilities, as well as sister offices within EPA, such as the Office of Wastewater Management and Office of Science & Technology, as well as the Office of Research & Development.

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