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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the December 2012/January 2013 Regulatory Update. This Update provides a summary of relevant regulatory issues and actions current to the end of January 2013.  Please contact Chris Hornback at 202/833-9106 or  This e-mail address is being protected from spambots. You need JavaScript enabled to view it  Cynthia Finley at 202/533-1836 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

EPA Denies NRDC Secondary Treatment Petition in Key Victory for Clean Water Agencies

Consistent with NACWA’s recommendations, EPA issued on December 14 a strongly-worded denial of the Natural Resources Defense Council’s (NRDC) 2007 petition that sought to modify the secondary treatment regulations to include nutrient removal. Citing the technical constraints and costs associated with uniform national limits, EPA’s denial letter  reaffirms the Agency’s preference for controlling nutrient discharges from Publicly Owned Treatment Works (POTWs) through the water quality-based provisions of the Clean Water Act. The decision is a major victory that will save public agencies tens of billions of dollars annually and ensures that this unworkable one-size-fits-all approach is not the path EPA takes to solve the nutrient challenge. NACWA has led the advocacy effort on this issue since 2007 and encouraged the Agency to take the exact steps laid out in the December 14 denial. On January 15, the NRDC lawsuit seeking to compel EPA to respond to the 2007 petition was dismissed. More information can be found in NACWA’s Advocacy Alert 12-14.

NACWA to Participate in New Dialogue on Financial Capability

NACWA is encouraged by the EPA’s January 18 memorandum  to its regional offices that commits the Agency to an ongoing dialogue with the U.S. Conference of Mayors, NACWA, and other key stakeholders on determining the financial capability of communities to meet their Clean Water Act (CWA) obligations. The memorandum transmits a document, EPA’s Dialogue with Local Government – Financial Capability Framework, that describes the issue and the topics that will be discussed during the dialogue. In the coming months, based on input from the dialogue, EPA will work to develop “an approach to provide clarification” on key issues and to help ensure “consistent implementation among EPA Regions.”

EPA’s commitment to an ongoing dialogue and additional guidance is an important step forward on the issue of financial capability as well as the Agency's broader integrated planning initiative. NACWA provided an analysis of the memorandum to the membership via Advocacy Alert 13-01 and issued a press release. While there were no surprises in EPA’s memorandum – much of what the document covers has been stated before in previous Agency communication – NACWA believes the commitment to an ongoing dialogue and additional guidance is an important step forward. The new effort, however, stops short of a wholesale revision of the 1997 financial capability guidance and NACWA plans to continue its legislative efforts to compel EPA to revise the guidance. With support from the Targeted Action Fund (TAF), NACWA is currently developing a paper that builds on its previous financial capability work to outline a new approach to assessing financial capability, which will build on the principles outlined in EPA’s integrated planning framework.

Federal Court Strikes Down EPA “Flow TMDL” for Stormwater

A federal court in Virginia issued a strong decision  on January 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."

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.

Bolstered by the Association’s Targeted Action Fund, NACWA submitted a brief in the case supporting the TMDL challenge. This 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 still unclear 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.

Drug Enforcement Administration Proposes Rule to Allow Prescription Drug Take-Back Programs; NACWA Requests Input for Comments

On December 21, the Drug Enforcement Administration (DEA) published a proposed rule  that expands the options for disposal of controlled substances to include take-back events, mail-back programs, and collection receptacle locations. The rule would allow authorized manufacturers, distributors, reverse distributors, and retail pharmacies to voluntarily administer mail-back programs and maintain collection receptacles. Comingling of controlled and non-controlled substances, maintenance of collection receptacles by retail pharmacies in long-term care facilities, and transfer of controlled substances by persons lawfully entitled to dispose of property from one recently deceased, are also allowed in the proposed rule.

NACWA and its members have long worked on the problem of drug disposal, and NACWA previously gave input to DEA on the drug disposal issue during a January 2011 public meeting. Many NACWA members have also been active participants or organizers of pharmaceutical take-back programs. From NACWA’s initial review, the proposal seems to be very thorough and helpful in keeping pharmaceuticals out of sewer systems. NACWA plans to submit comments on the rule by the February 19 deadline and requests that member input be sent to Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it by Friday, February 9. NACWA members are also encouraged to write their own comments and to send a copy to NACWA.

Air Quality

EPA Extends Negotiations on Enforceable Consent Agreement for Siloxane

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 .

EPA Releases Final Emission Standards for Boilers and Engines

EPA published two final National Emission Standards for Hazardous Air Pollutants (NESHAP) at the end of January, one dealing with industrial, commercial, and institutional boilers and process heaters for major sources  and one for stationary reciprocating internal combustion engines (RICE). NACWA submitted comments  on the original NESHAP for boilers in 2010. Both rules provide clarifications and corrections to the original NESHAPs for boilers and RICE as a response to several lawsuits and petitions for reconsideration. NACWA is currently reviewing the final rules and will issue an Advocacy Alert later this month to summarize the rules and any impacts for NACWA members.

Biosolids

NACWA Submits Final Brief in SSI Litigation

NACWA filed a reply brief  on December 6 with a federal appellate court in litigation over EPA’s sewage sludge incinerator (SSI) rule, reiterating the Association’s legal and technical arguments against the rule and marking the final substantive brief to be filed in the case. NACWA’s brief responds to arguments made by both EPA and the Sierra Club in briefs they have previously submitted in support of the SSI rule.

NACWA’s filing explains why the positions advocated by EPA and Sierra Club are wrong, while at the same time bolstering arguments made by NACWA in its opening brief  that the rule suffers from fatal legal and technical flaws. In particular, NACWA emphasizes that the final SSI rule exceeds EPA’s statutory authority under both the Clean Air Act (CAA) and Clean Water Act. NACWA also highlights the statistical and technical errors made by EPA in setting the rule’s emissions limits. As a result of these problems, NACWA argues the court must vacate the rule in its entirety, thus forcing EPA to develop more appropriate and cost-effective SSI standards. NACWA initiated the litigation to challenge the SSI rule in 2011. The reply brief filed this week is the final substantive brief to be filed in the case with the court expected to hear oral arguments in the case sometime in early 2013.

While NACWA awaits oral arguments and a decision in the case, the Association is also working to ensure its members that operate incinerators are taking the necessary steps to stay in compliance with the CAA. SSI operators are required to submit a control plan to indicate how they plan to comply with the SSI rules. Depending on the state, many utilities will need to submit these plans in March of this year. NACWA hosted a conference call on January 30 to discuss the issue of modification and what changes to an existing SSI may trigger more stringent requirements and plans to hold future calls on similar topics.

Climate Change

Draft National Climate Assessment Report Released for Public Comment

A draft National Climate Assessment report has been released by the U.S. Global Change Research Program as required by the Global Change Research Act of 1990. The Assessment acts as a status report about climate change science and impacts, with a goal of incorporating the understanding of climate science into larger social, ecological, and policy systems. The report analyzes climate impacts for a variety of sectors, including water resources.

Water sector association staff provided input to National Climate Assessment staff in the initial stages of research for the report. NACWA is reviewing the Assessment report and will be submitting comments, if needed, by the April 12 deadline. Any input for comments should be sent to Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

EPA Publishes Final National Water Program Climate Change Strategy

EPA released its final National Water Program 2012 Strategy: Response to Climate Change in December, detailing long-term goals and specific actions to prepare for the impacts of climate change on water resources and utilities. The strategy builds on EPA's first climate change and water strategy, which was released in 2008, and defines goals and actions in five areas: infrastructure, watersheds and wetlands, coastal and ocean waters, water quality, and working with Tribes. NACWA submitted comments  on the draft Strategy in May 2012, urging EPA to reconsider Clean Water Act regulations to allow for a holistic watershed approach to water quality protection. NACWA provided suggestions for making several of the strategic actions listed in the report more effective. While no substantive changes were made in the final Strategy, EPA added a reference to the Integrated Planning process as a method for more sustainable and comprehensive wastewater and stormwater management solutions, including green infrastructure.

The domestic conversation on climate change has been effected most recently by the impacts of Hurricane Sandy. There is momentum for promoting and funding resiliency efforts and addressing climate issues in broader terms. NACWA will continue encouraging EPA to develop more holistic approaches to climate challenges for water resources and to evaluate regulations that impede wastewater utilities’ ability to deal with climate impacts and energy issues.

Integrated Planning

NACWA, ACWA, WEF, and EPA Partner on Regional Integrated Planning Workshops

NACWA is partnering with EPA, the Association of Clean Water Administrators (ACWA), and the Water Environment Federation (WEF) to offer a series of Integrated Planning (IP) workshops. The next workshop will bring together key stakeholders from Region 7 and will be held in Kansas City, Kansas on March 12. A Region 10 workshop will take place in Portland, Oregon on April 3 and is being hosted in conjunction with the Oregon Association of Clean Water Agencies (ORACWA). NACWA encourages members in these regions that are interested in pursuing integrated plans to attend and register on NACWA’s website.

These workshops will bring together clean water agencies, state regulators, EPA Regional staff, and EPA Headquarters staff to discuss the Agency’s IP framework. It will provide utilities that are still considering the development of an integrated plan – or are already in the process of negotiating one – with an opportunity to discuss implementation issues, barriers, and lessons learned. These workshops are especially timely given EPA’s release of its January 18 memorandum to its regional offices on financial capability assessments (discussed above). IP is a fundamental tool to help communities assess their affordability challenges.

NACWA has devoted considerable time and resources to the financial capability issue, and continues this with a new Targeted Action Fund initiative, currently underway, to assess financial capability in an IP context. It is anticipated that these workshops will be a forum for frank discussion of how IP and financial capability complement one another and how to develop a successful integrated plan.

A future workshop is proposed for Region 5 in the late spring. NACWA will provide the complete IP workshop schedule on its events page when it becomes available. Interested utilities may contact Brenna Mannion at This e-mail address is being protected from spambots. You need JavaScript enabled to view it for more information.

Nutrients

NACWA Supports Adaptive Approach in Proposed Iowa Nutrient Reduction Strategy

NACWA provided comments  in support of Iowa’s proposed Nutrient Reduction Strategy on January 2, 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.”

Meetings and Conferences

Upcoming NACWA Policy Forum and Pretreatment Conferences

NACWA’s National Environmental Policy Forum will be held April 21-24 at the Washington Marriot in Washington, D.C. As the newly elected legislature and administration kicks off 2013, the Policy Forum is well-timed to focus significant attention on important clean water issues, including integrated planning and affordability, controlling agricultural run-off, and innovative financing for clean water investments. Policy Forum speakers and panelists will discuss these and other issues, providing attendees with a level of detail and insight only available at the Forum. We hope you can join us!

Also save the date for the only conference designed especially for pretreatment professionals – the National Association of Clean Water Agencies' (NACWA) National Pretreatment & Pollution Prevention Workshop being held May 15-17 in Portland, Oregon at the Double Tree Hotel. More information about both the Policy Forum and the Workshop will be posted soon on NACWA’s Conferences & Professional Development webpage.

Security & Emergency Preparedness

Water Sector Coordinating Council Discusses Security and Natural Disasters; NACWA’s Patty Cleveland Elected Vice Chair

The Water Sector Coordinating Council (WSCC) conducted a two-day meeting this week to discuss water sector security and emergency preparedness issues. The WSCC was joined by the Government Coordinating Council (GCC), which includes representatives from EPA and the Department of Homeland Security (DHS) for the second day of the meeting. Both of NACWA's representatives for the WSCC – Patty Cleveland, Assistant Regional Manager with the Trinity River Authority, Texas, and Jim Davidson, Manager of Safety & Security with the Northeast Regional Sewer District, Ohio – participated in the meeting.

Patty Cleveland’s commitment and service to the Council were recognized with her election as Vice Chair of the WSCC at the meeting. She began her two-year term immediately, serving collaboratively with newly-elected Council Chair, Charles Hilton, General Manager of Breezy Hill Water & Sewer in South Carolina.

The WSCC and GCC discussed the priorities of the water sector and actions that could be taken to advance these priorities. A workgroup will be formed to review the Roadmap to a Secure and Resilient Water Sector and update it to reflect current priorities. For example, cyber-security was not a prominent issue when this Roadmap was written five years ago, but it is now an issue that the sector must address. Another problem that the sector plans to address with government agencies is the difficulty faced by utility workers that need to gain access to restricted areas after a natural disaster. While electric utility trucks seem to be given full access, water utility workers are often turned away or delayed while their status is verified.

The WSCC meets quarterly, and NACWA will continue to keep members informed about WSCC activities and opportunities that are available to utilities to improve their agency’s security and emergency preparedness as well as the water sector more broadly.