» Clean Water Current Archive

January 4, 2013

Federal Court Strikes Down EPA “Flow TMDL” for Stormwater

A federal court in Virginia issued a strong decision Jan. 3 finding that EPA’s use of stormwater flow as a pollutant surrogate in a total maximum daily load (TMDL) is illegal under the Clean Water Act (CWA), echoing arguments made by NACWA in the case and providing a significant legal victory for the municipal stormwater community.  The court’s ruling in Virginia DOT, et al. v. EPA found that stormwater flow on its own is not considered a “pollutant” under the CWA, and thus EPA’s efforts to use it as a surrogate for pollutants, such as sediment, in establishing TMDLs is illegal.  The court expressly found the CWA language limiting EPA’s TMDL authority to actual pollutants is unambiguous, with the court stating that “EPA’s authority does not extend to establishing TMDLs for nonpollutants as surrogates for pollutants."

NACWA Targeted Action Fund Supports Favorable Outcome

Bolstered by the Association’s Targeted Action Fund, NACWA submitted a brief in the case supporting the TMDL challenge.  Yesterday’s decision is an important victory for the municipal stormwater community and the Association’s stormwater members.  This is an outcome NACWA has been aggressively advocating for over a number of years, and such a clear ruling from the court is a major legal win.  The state and municipal plaintiffs initiating the lawsuit estimate compliance with the challenged flow TMDL could have cost over $300 million, so the victory will also result in significant cost savings.  It is unclear yet how EPA will react to the ruling, or if the Agency will appeal’ but this ruling can be very helpful to utilities in other parts of the country also dealing with flow TMDLs.  NACWA strongly encourages members to use the decision in pushing back against these TMDLs.

This litigation stems from a lawsuit filed last year by the state of Virginia and NACWA member Fairfax County, VA over a stormwater flow TMDL established by EPA.  As part of the lawsuit, the state and municipal plaintiffs included a copy of EPA’s highly controversial 2010 TMDL memorandum, which suggested that flow be used as a pollutant surrogate in TMDLs to help establish numeric effluent limits for MS4 permits.  NACWA filed a brief in the lawsuit supporting the plaintiffs in their legal challenge, arguing that EPA regulation of flow as a surrogate for pollutants under the CWA is improper.  Yesterday’s ruling echoes many of these arguments, and NACWA is extremely pleased with the court’s decision.

Additional information on the case can be found on NACWA’s Litigation Tracking webpage. The Association will monitor developments and keep the membership updated.

NACWA Files Brief Supporting Municipal Stormwater Fee Program

NACWA submitted a brief Feb. 4 with an Ohio state appellate court supporting Association member, the Northeast Ohio Regional Sewer District (NEORSD), in defending a municipal stormwater fee program from legal challenge.  NACWA’s Targeted Action Fund supported brief is consistent with a brief recently filed by the Association in a Missouri stormwater fee case, and argues that NEORSD’s use of impervious surface for stormwater billing purposes is scientifically valid and represents the industry norm.   Additionally, the brief contends that municipal stormwater service charges qualify as valid utility fees and are not impermissible taxes.  The brief highlights a number of state and federal court decisions upholding stormwater charges as fees and not taxes, and argues that a recent amendment to the federal Clean Water Act – which was strongly supported by NACWA – further clarifies that stormwater fees based on impervious surface are appropriate utility charges.

NEORSD was successful in defending its stormwater fee program from legal challenge at the state trial court level, and now seeks to uphold that victory on appeal.  NACWA was joined by a number of other groups on the brief including the National Association of Flood & Stormwater Management Agencies (NAFSMA), the American Public Works Association (APWA), American Rivers, and the Association of Ohio Municipal Wastewater Agencies (AOMWA).  A copy of the brief will be posted on NACWA’s Litigation Tracking page early next week.

Municipal/Local Government Groups Send Stormwater Letter to EPA

In a related stormwater development, NACWA helped organize and submit a letter to EPA on Dec. 21 from a coalition of municipal and local government groups.  The letter discusses the Agency’s work to develop a post-construction stormwater rule, and serves as a follow-up to a meeting NACWA hosted in November with EPA staff to discuss progress on the rule.

Among other things, the letter outlines areas where the signatory organizations would like additional information from EPA regarding potential elements of the draft rule, and expresses interest in continuing a dialog with the Agency regarding the proposal.   Groups signing the letter in addition to NACWA include NAFSMA, APWA, the National League of Cities (NLC), and the National Association of Counties (NACo).  NACWA sent a separate letter to EPA on the stormwater rule last month, and looks forward to continued engagement with these key stakeholder groups moving forward.

As Congress Reaches Deal on Fiscal Cliff, Farm Bill is Extended 9 Months

After weeks of tense negotiations, Congress enacted The American Taxpayer Relief Act of 2012, eliminating the potential for across-the-board spending cuts known, as sequestration, and tax hikes that were set to begin on January 2nd.  Sequestration cuts, which would cut up to 8.2% of federal agency budgets including that of the Environmental Protection Agency, are delayed to March 1 –  unless Congress acts on a new spending plan before then.  In exchange for this delay the Administration agreed to identify $24 billion in savings throughout the federal budget.  While the package contained several tax reform items, the package makes no changes to the tax exempt status of municipal bonds.  In December, as negotiations were ramping up, NACWA signed a letter urging Congress and the Administration to continue the tax exempt status of municipal bonds.  Also included in the fiscal cliff legislation is a nine-month extension of the Farm Bill, which continued current funding levels for many conservation programs, but made none of the policy changes that were recommended in proposals passed in the Senate and House Agricultural Committee, including those related to nutrient management.

Shuster Named T & I Committee Chair

Rep. Bill Shuster (R-PA) was officially confirmed by the House of Representatives to chair the Committee on Transportation & Infrastructure.  Rep. Shuster has been a longtime supporter of efforts to improve the condition of the country’s water infrastructure and NACWA looks forward to strengthening its relationship with him and his office.  We will keep members informed of any updates on the new Congress as they occur.

Congress Passes Initial Relief Package for Hurricane Sandy Disaster

Today, Congress passed the first installment of a relief package to aid victims of Hurricane Sandy totaling $9.7 billion which will be followed by a vote on a larger $51 billion package on January 15th.  The original package that was taken up during the 112th Congress in the Senate was not voted on in the House before the 112th officially adjourned January 3rd.  Consequently, Speaker Boehner agreed to take up the package in two parts, beginning with today's vote, followed by the January 15th vote.  Today's $9.7 billion installment will go to FEMA's Flood Insurance Relief program to extend borrowing authority under that program which was on track to expire next week.

Aid for Water & Wastewater Utilities Expected

The second package, worth $51 billion, is targeted to broader relief efforts and is expected to include aid for water and wastewater utilities in the impacted States to undertake preparedness measures to mitigate against future disasters.  Last month, NACWA sent a letter to Congress supporting the $60.4 billion in recovery assistance, and its emphasis on repairing and strengthening the impacted region’s municipal wastewater treatment plants.  The Association plans a follow-up letter to the House to ensure Members understand the importance of repairing impacted water infrastructure and enhancing utility preparedness and resiliency in the wake of future large wet weather events. NACWA Members located in the Hurricane Sandy-impacted states are encouraged to reach out to their Representatives to urge support for this funding.

Last month, NACWA circulated a survey to utility members in states affected by Hurricane Sandy to collect information on what kind of damages the region’s wastewater plants experienced.  If your utility experienced damage and you have not yet completed this survey, it is available here.  Information collected through the survey will help us better explain to policymakers in Washington, D.C. how extreme weather events impact water and wastewater systems, as well as help us advocate for legislation and policies to enhance utility and community resiliency.  Your participation is greatly appreciated.

NACWA Supports Adaptive Approach in Proposed Iowa Nutrient Reduction Strategy

NACWA provided comments in support of Iowa’s proposed Nutrient Reduction Strategy this week, commending the state for taking a multi-faceted approach that seeks to address both point and nonpoint sources in a “a scientific, reasonable and cost effective manner”.  While the program lacks regulatory requirements for nonpoint sources, the strategy will make progress on reducing nutrient loadings without disproportionately burdening the point source community.

Recent nutrient reduction efforts in other parts of the country have focused on maximizing reductions from POTWs because those reductions are more certain and quantifiable, resulting in permit levels at the limits of technology with the threat of further reductions through backstop provisions if nonpoint source controls are not successful.  Iowa’s Strategy, on the other hand, recognizes the relative contributions from the point and nonpoint source communities and offers a reasonable and clear path forward for the point source community.  The Iowa Strategy clearly indicates how the nutrient requirements will be implemented within the clean water community, providing POTWs with greater certainty in terms of their long-term investments.

Under the Iowa Strategy, future POTW permits will specify technology based limits, which will not be more stringent than 10 mg/l total nitrogen (TN) and 1 mg/L total phosphorus (TP), with a guarantee that these limits will not to be made more restrictive “for a period of at least 10 years” once the nutrient reduction process is installed.  While NACWA acknowledges the Iowa Strategy’s approach to nonpoint sources as a good first step, its voluntary nature further underscores the limitations of the current authorities in the Clean Water Act to address all sources of nutrients.  Iowa’s Strategy was developed consistent with EPA’s March 2011 nutrient policy memorandum, which stressed the need to make progress in reducing nutrient loadings while continuing to work on numeric nutrient criteria.  The Iowa Strategy points to “legitimate concerns” about the value of numeric nutrient criteria and indicates that it will “continue assessing” the appropriate basis for nutrient standards “within an adaptive watershed management framework.”

EPA Extends Siloxane Negotiations

EPA announced on December 20 that negotiations on an enforceable consent agreement (ECA) for environmental monitoring for two siloxanes, D4 and D5, would be extended until February 27, 2013.  The negotiations between EPA and the Silicone Environmental Health & Safety Council of North America (SEHSC) began in June 2012 and were originally scheduled to end by December 27, 2012.  NACWA has been participating in the negotiations as an interested party because of the detrimental effects of siloxanes on the exhaust stages of boilers, engines, and other equipment when biogas is used as a renewable fuel by publicly owned treatment works (POTWs).

The negotiations have focused on the scope of the monitoring program, particularly for POTWs and indirect discharging D4 and D5 manufacturing facilities.  SEHSC would like EPA to consider literature data collected from around the world to evaluate the environmental risk of D4 and D5, but EPA has maintained that the existing data is not adequate for their risk assessment purposes.  The Council also objects to the monitoring of indirect discharging manufacturing facilities, believing that this data would be used for risk management purposes, and the only purpose of the ECA is to collect data for risk assessment.  NACWA’s goal in the negotiations is to ensure that the data collected will be useful for beginning to address the problems of siloxane in biogas.  SEHSC has indicated that they would like to work with NACWA on this issue outside of the ECA negotiations, as well.  NACWA members that would like to provide input on the ECA negotiation process or to a potential project with SEHSC should contact Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Deadline Extended:
Public Agency Members Urged to Complete the 2012 NACWA Index Survey by January 18

NACWA has extended the deadline for its public agency members to complete the 2012 NACWA Index Survey until Friday, January 18, 2013.   NACWA has published the Index annually since 1992 to track increases in the average annual single-family residential service charge measured against the rate of inflation.  It has been a cornerstone of NACWA’s advocacy efforts ever since, and has proved to be invaluable to utilities as they evaluate rate changes.

Data collection for the 2012 Index began in November, and the results of the survey will be distributed to the membership in April 2013.  Preliminary results will be discussed at NACWA’s upcoming Winter Conference in Miami.  NACWA encourages all public agency members to participate and complete the survey by Friday, January 18.  An individualized one-page questionnaire, which should take less than 15 minutes to complete, was e-mailed to each NACWA public agency member’s primary contact.  The survey can be completed online (http://www.cleanwatercentral.org/logon.asp) or via hard copy. For more information on the survey and directions to submit your response, please see the November Member Update.

This Week on Engage™, The Water Voice

Several new discussions have been started and resources posted to discussion groups on NACWA Engage^TM. A summary of significant accomplishments in 2012 and planned activities for 2013 has been posted to the Stormwater Management group. In addition, as previously announced, NACWA is in the process of launching groups for its standing committees in preparation for the Winter Conference. This new feature will enable seamless communication and coordination among group members. The only way to benefit from this new tool, however, is to get online and get involved!

Remember, all individuals at NACWA member organizations have access to Engage^TM. NACWA members should use the same email and password that you use to access the Member Pipeline on the NACWA website. You can reset your password online, or, if you need a new account, please This e-mail address is being protected from spambots. You need JavaScript enabled to view it . For questions about how to use Engage^TM, please contact This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Have you joined the conversation yet at The Water Voice^TM? A recent blog post by Chris Hornback, EPA Makes the Right Call on Addressing Nutrient Discharges from Clean Water Agencies, emphasized the importance of spending money where it is most needed. “Protecting and improving water quality is expensive and adding needlessly to those costs hinders us from doing just that,” commented Mark Wyzalek of the Macon Water Authority.

To participate in this and other blog post discussions, you can sign up to receive automatic updates as articles are posted. Also, don’t forget to follow NACWA on Twitter and Facebook.