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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the February 2013 Regulatory Update. This Update provides a summary of relevant regulatory issues and actions current to the end of February 2013. 

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Impacts of Cybersecurity Executive Order and Policy Directive on Clean Water Agencies

Impacts of Cybersecurity Executive Order and Policy Directive on Clean Water Agencies
In conjunction with President Obama’s State of the Union address on the evening of February 12, the Administration released an Executive Order (EO) for Improving Critical Infrastructure Cybersecurity and a Presidential Policy Directive on Critical Infrastructure Security and Resilience (PPD-21). The EO directs the Department of Homeland Security (DHS) to develop a “Cybersecurity Framework” to reduce cyber-related risks to critical infrastructure, including wastewater and drinking water infrastructure. Following development of this Framework – and potentially impacting clean water agencies nationwide – the EO directs federal agencies to propose new regulations if existing cybersecurity regulations are insufficient. Since there are currently no cybersecurity regulations for the water sector, wastewater utilities may be subject to new cybersecurity regulations in the next few years. NACWA’s Advocacy Alert 2-14 contains more details about the EO and its potential effects on clean water agencies.

PPD-21 was released with the EO in an attempt to take an integrated approach to strengthening the security and resiliency of critical infrastructure against all hazards, including cyber threats. The main requirements in the PPD include integrating physical security and cybersecurity analysis and situational awareness, improving information sharing, and enhancing the federal government’s ability to be a better partner to critical infrastructure owners and operators. The PPD recognizes that “critical infrastructure owners and operators are uniquely positioned to manage risks to their individual operations and assets, and to determine effective strategies to make them more secure and resilient.” However, PPD-21 does not mention the partnership between federal agencies and the Sector Coordinating Councils. During a call with DHS on February 15, DHS emphasized that it did value the role of the Councils and would continue to partner with them.

The Water Sector Coordinating Council (WSCC) will be providing comments to DHS on PPD-21.  NACWA will work with its representatives on the WSCC – Patty Cleveland, Assistant Regional Manager, Northern Region, of the Trinity River Authority, TX, Vice Chair of the WSCC and a NACWA Board member, and Jim Davidson, Manager of Safety & Security with the Northeast Ohio Regional Sewer District, OH – to address concerns with the EO and PPD-21.  Please email Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it with input or questions about cybersecurity.

NACWA Supports DEA Proposed Rule for Disposal of Controlled Substances

NACWA submitted comments on February 19 to the Drug Enforcement Administration (DEA) on a December 21 proposed rule that expands the options for disposal of controlled substances. Many NACWA members are actively involved in pharmaceutical take-back programs and public education efforts to reduce the amount of pharmaceuticals that end up in wastewater. The proposed rule represents a significant step toward providing more convenient, environmentally-friendly methods of disposal for unused pharmaceuticals. The rule would allow authorized manufacturers, distributors, reverse distributors, and retail pharmacies to voluntarily administer pharmaceutical “mail-back programs” – whereby individuals mail back unused pharmaceuticals to the appropriate location – as well as to maintain collection receptacles where individuals can safely dispose of their unused pharmaceuticals. Other entities would be allowed to work with law enforcement agencies to conduct take-back events, although law enforcement officers must still oversee the collection of controlled substances. 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 an ultimate user decedent’s property are also allowed in the proposed rule.

NACWA’s comments supported the DEA’s “non-retrievable” standard of destruction specified in the rule’s preamble – and inclusion of the statement that “flushing and mixing controlled substances with coffee grounds or kitty litter are examples of existing methods of destruction that do not meet the non-retrievable standard.” The Association recommended that the rule’s definition of non-retrievable also include this statement on flushing and mixing. NACWA also recommended that DEA allow inventorying of controlled substances at take-back events for research purposes, under the supervision of a law enforcement officer, in order to improve and evaluate prescribing guidelines. The Association’s other comments on the rule addressed the need to make disposal options more convenient, particularly for long-term care facilities.

NACWA will follow the development of the final rule and will continue to communicate with DEA, as needed, on disposal options for unused pharmaceuticals.

Contact: Cynthia Finley at 202/533-1836 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it

Climate Change

NACWA Considers Coalition to Address Regulation of Biogenic Emissions

NACWA met on February 26 with the Corn Refiners Association and other crop and food processing associations to discuss a possible coalition to address the regulation of biogenic greenhouse gas (GHG) emissions under the Clean Air Act (CAA). EPA began regulating GHG emissions in 2011 with the GHG Tailoring Rule, which included all GHG emissions in the Prevention of Significant Deterioration (PSD) and Title V permitting programs. Biogenic emissions, including carbon dioxide emissions from the wastewater treatment process and the combustion of biogas and biosolids, are considered part of the natural carbon cycle and are exempt from EPA’s annual GHG Inventory and Reporting Rule.

EPA deferred regulation of biogenic emissions until July 2014 to provide the Agency with time to study the issue and determine how biogenic emissions should be regulated. EPA proposed a biogenic accounting factor of zero for short-cycle biogenic emissions – such as those related to wastewater treatment and annual crop production – which means that these emissions would not be counted in the regulations. The Science Advisory Board expert panel that studied the issue also seemed to indicate that short-cycle biogenic emissions are carbon neutral. Biogenic emissions related to forest products have a longer carbon cycle and are generally not considered carbon neutral.

Unless EPA takes action or one of several ongoing court cases related to GHG regulation concludes with a result that changes the current regulations, biogenic emissions will automatically become part of the PSD and Title V permitting programs in July 2014. EPA has not yet begun a rulemaking process for biogenic emissions, and is unlikely to finish a rule in the next 16 months. NACWA is therefore considering joining a coalition to include the Corn Refiners Association and other industry associations with short-cycle biogenic emissions to advocate for a permanent exemption of these short-cycle emissions from CAA regulations.

NACWA will continue discussing the issue and a path forward with the potential members of the coalition and will keep members informed of new developments. NACWA members who have estimates of their biogenic emissions are encouraged to contact Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it , since this information can help inform the actions of the Association and the possible coalition.

EPA Releases Draft Climate Change Adaptation Plan

The release of the Draft EPA Climate Change Adaptation Plan was announced in a February 8 Federal Register notice. The Plan was developed by EPA in response to Executive Order 13514, Federal Leadership in Environmental, Energy, and Economic Performance. It contains an analysis of vulnerabilities related to climate change in each of EPA’s five strategic goals, which includes “Protecting America’s Waters,” and outlines priorities for EPA to address these vulnerabilities. It also includes methods for evaluating the efforts to adapt to climate change.

NACWA is currently reviewing the Plan and will work with its Climate and Energy Committee to submit comments by the April 9 deadline. NACWA members with input on the Plan should contact Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Financial Capability

EPA Updates NACWA on Financial Capability during National Association Outreach Meeting

NACWA, along with representatives from major state and local associations including the U.S. Conference of Mayors (USCM), the National League of Cities (NLC), and the National Association of Counties (NACo), participated in a National Association Outreach Meeting hosted by EPA’s Office of Congressional and Intergovernmental Relations on February 27 to discuss EPA’s January 18, 2013 memorandum on financial capability, along with other, unrelated issues. Mark Pollins, Director of the Water Enforcement Division in the Office of Enforcement and Compliance Assurance, and Connie Bosma, Chief of the Municipal Branch in the Office of Wastewater Management, provided a brief update on the memorandum. Pollins noted that following the release of the Agency’s June 2012 integrated planning framework, it became clear that additional dialogue on financial capability considerations was needed. While Pollins stressed that the Agency’s existing 1997 guidance on financial capability remains as the basic framework, EPA is trying to work with the Mayors and other groups, including the Water Environment Federation (WEF), to expand on the list of indicators and other information used to inform financial capability assessments conducted pursuant to the guidance. NACWA continues to believe that the 1997 guidance must change and is currently working on a Targeted Action Fund (TAF) initiative to outline what changes are needed. EPA, the USCM, NLC, and NACo will next meet in April to continue their dialogue on financial capability. NACWA and other groups will join the dialogue later this spring.

Pollins and Bosma also discussed continued efforts to encourage communities to take advantage of the June 2012 integrated planning framework and to bring the EPA regional offices along to ensure consistent implementation. Pollins noted that the rollout to the regional offices is proceeding quicker than expected and stressed the importance of having Bob Perciasepe, a key proponent of integrated planning, as the Acting EPA Administrator.

Contact: Chris Hornback at 202/833-9106 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

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.

Also save the date for the only conference designed exclusively 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 DoubleTree Hotel. The Workshop will feature multiple roundtable sessions for networking with other pretreatment professionals, as well as informative presentations by staff from EPA Headquarters.

More information about both the Policy Forum and the Workshop are available on NACWA’s Conferences & Professional Development webpage. Contact Cynthia Finley at 202/533-1836 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it for more information.

Stormwater

NACWA Hosts Follow-Up Meeting to Discuss Stormwater Rule

NACWA organized and hosted a meeting on February 21 between EPA, including Acting Assistant Administrator for Water, Nancy Stoner, and a number of municipal and local government associations focused on the development of a new national post-construction stormwater rule. The meeting served as a follow-up to a previous discussion NACWA hosted in November and offered EPA an opportunity to provide an update on its rulemaking progress, with the proposed rule due in June 2013.

Based on discussion at the meeting, it is clear EPA is still actively looking at performance standards for discharges from new and redeveloped sites that would require a greater amount of stormwater to be retained onsite. EPA, however, seems committed to providing substantial flexibility under the rule, including the possibility of allowing delayed implementation of the requirements to allow municipalities to enact the necessary codes and ordinances for onsite retention. It also appears EPA may be backing off earlier plans to require some large, regulated municipalities to manage stormwater runoff from existing sites through a retrofit program, although exactly how the Agency will handle this issue is still unclear. EPA also offered a possible alternative approach to the redevelopment standard, which would allow communities to utilize green infrastructure and incorporate it into their integrated planning efforts. Most of the other issues, outlined by EPA in November, still appear to be under active consideration, although the Agency is still working on its cost-benefit analyses.

Other groups participating in the meeting were the National Association of Counties (NACo); the U.S. Conference of Mayors (USCM); the National League of Cities (NLC); the Water Environment Federation (WEF); the American Public Works Association (APWA); and, the National Association of Flood & Stormwater Management Agencies (NAFSMA). NACWA and these organizations have maintained regular communication and coordination over the past months regarding the stormwater rule, and a number of these groups provided a joint comment letter to EPA in December 2012. This follow-up meeting was an opportunity for EPA to directly address those comments, explain whether they would be incorporated, and to update the rulemaking progress. The meeting also included WEF-organized presentations from practitioners on stormwater retention techniques.

EPA is on track to propose the rule for public comment in June 2013, with a final rule anticipated in December 2014.

Contact: Brenna Mannion at 202/533-1839 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it

Water Quality

NACWA Urges EPA to Limit Inadvertently Generated PCBs

NACWA expressed concern in a letter dated February 20 to EPA’s Office of Pollution Prevention & Toxics that the implementing regulations for the 1979 Toxics Substance Control Act (TSCA) need to be revised to decrease allowances for inadvertently generated PCBs in products. The Association and its members believe controlling the source of PCBs flowing into a clean water facility is the best way to prevent them from entering the nation’s waterways.

In the Pacific Northwest, state regulators, National Pollutant Discharge Elimination System (NPDES) permittees, the tribes, and local conservation groups have formed the Spokane River Regional Toxics Task Force (SRRTTF) to address water quality concerns related to toxics in the river. SRRTTF, and the Environmental Council of the States (ECOS), have also expressed an interest in seeing TSCA changed. NACWA’s letter was intended to lend support to SRRTTF and ECOS in their efforts to see that EPA further limits the concentration of inadvertently generated PCBs allowed in products.

TSCA impacts a variety of stakeholders, including state environmental regulatory programs and sister offices within EPA and modification of the Act and its implementing regulations has been an ongoing conversation among these groups and on Capitol Hill. NACWA is committed to maintaining involvement and informing the membership as this effort evolves.

Contact: Brenna Mannion at 202/533-1839 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it

NACWA Encouraged by EPA Actions in Florida Regarding Nutrients; Submits Comments

NACWA submitted comments February 1 on two EPA rulemakings related to the Agency's federal nutrient criteria for the State of Florida. Since 2009, when EPA issued a determination that federal criteria for the state were necessary, the Agency’s efforts have garnered significant attention. Many stakeholders saw EPA’s actions in Florida as the first in what could become a long list of federal criteria for nutrients. While this heavy-handed federal program has not materialized elsewhere, developments in Florida are still very relevant for the nation. EPA took several actions on November 30, 2012, including approving the Florida Department of Environmental Protection’s (FDEP) nutrient criteria proposal, revising the 2009 determination that federal criteria were necessary, and signing two proposed rules, which were the focus of NACWA's comments.

Though EPA was compelled by Consent Decree to issue the proposed rules further outlining federal criteria for the state, the Agency’s planned actions over the coming months, as detailed in both proposals, set out a clear path forward to restoring Florida as the primary authority for developing water quality standards for its waters. In addition, EPA’s approval of the FDEP criteria, which include a biological confirmation component that EPA has previously been unwilling to approve, shows an increasing willingness by the Agency to recognize innovative approaches that can better account for the varying responses to different nutrient levels among waterbodies. The Agency has previously insisted on strict independent applicability of numeric criteria, where only the concentration of nitrogen or phosphorus, not the actual biological health of the waterbody, dictates whether there is an impairment. Taken together, EPA’s recent actions regarding Florida reflect a positive shift in the Agency’s thinking. However, significant issues remain and NACWA’s members in Florida believe that there is still a long way to go before all of their concerns are addressed.

Contact: Chris Hornback at 202/833-9106 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it