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

Top Stories

NACWA Releases Water Resources Utility of the Future… A Call for Federal Action, Meets With Senior EPA Officials

NACWA released Water Resources Utility of the Future… A Call for Federal Action at its National Environmental Policy Forum on April 23 in Washington, D.C. Drawing upon The Water Resources Utility of the Future . . . A Blueprint for Action  , this new, concise and visual publication defines ten tangible steps that the nation can take to realize a shared vision for the Water Resources Utility of the Future. It calls upon the U.S. Environmental Protection Agency (EPA), Congress, and other key federal agencies to rethink their relationship to the water sector and take the key actions that will put the Utility of the Future within reach for all clean water agencies.

In his keynote address at the Policy Forum, Acting EPA Administrator, Robert Perciasepe, applauded the concepts discussed in the document and expressed support for NACWA’s ongoing Utility of the Future efforts. The trifold will serve as a key tool in the Association’s advocacy efforts with the Administration, on Capitol Hill, and with other stakeholders. Outreach began at a meeting on April 26 with high ranking EPA Office of Water officials where NACWA explored potential collaborative efforts to advance shared goals under the Utility of the Future initiative. The Water Resources Utility of the Future… A Call for Federal Action is available online as a flipbook and in hard copy upon request to NACWA via Claire Moser at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Air Quality

 Court Hears Arguments on EPA’s Biogenic GHG Deferral

A federal appellate court held oral arguments on April 8 in a challenge to EPA’s deferral of certain biogenic emissions from the Agency’s greenhouse gas regulations. NACWA filed a friend of the court brief in the case, which could have significant impacts on municipal clean water utilities. The lawsuit, Center for Biological Diversity, et al. v EPA, focuses on 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.

The panel of judges hearing the case appeared to be split on whether EPA’s deferral decision was valid, with some judges indicating support for the Agency’s action while others expressed skepticism as to the deferral’s validity. The arguments lasted nearly double the original scheduled time, suggesting the judges have significant interest in the issues presented in the litigation. A decision is expected within the next few months.

NACWA’s brief, filed last year, supports EPA’s deferral decision and explains why biogenic emissions from publicly owned treatment works (POTWs) are different in nature from other biogenic emissions, noting the short carbon cycle associated with human waste and the unavoidable nature of the emissions, which would occur regardless of POTW processing. The Association’s filing also explains 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 and on the Association’s Litigation Tracking page.

Even if the deferral is upheld by the court, it will expire in July 2014 and EPA will need to take action to avoid CAA regulation of biogenic emissions from POTWs. NACWA has joined a coalition of other associations that represent industries with short carbon cycle biogenic emissions (see story below). Regardless of the court’s decision in this case, the coalition will advocate for EPA to initiate a rulemaking to permanently exempt short carbon cycle emissions from CAA permitting programs. NACWA will keep the membership updated on developments with the lawsuit and coalition actions.

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

 NACWA Joins Biogenic Emissions Coalition

NACWA’s Board of Directors voted on April 21 to join a coalition with crop and food processing associations to address the regulation of biogenic greenhouse gas (GHG) emissions under the CAA. EPA did not exclude biogenic emissions – such as carbon dioxide emissions from wastewater treatment processes and the combustion of biogas and biosolids – when it began regulating GHG emissions in 2011 through the PSD and Title V permitting programs. EPA deferred regulation of biogenic emissions, however, until July 2014 to provide the Agency with time to study the issue and determine how biogenic emissions should be regulated.

Unless EPA takes action, or one of several ongoing court cases related to GHG regulation concludes with a result that changes the current regulations (see story above), biogenic emissions will automatically become part of the PSD and Title V permitting programs in July 2014. The coalition of associations, representing industries with short carbon cycle biogenic emissions, will advocate for a permanent exemption of these emissions from CAA regulations. Environmental groups usually do not object to short cycle emissions and are instead focused on emissions with a longer carbon cycle, such as those from forest products.

NACWA met with other coalition members on May 1 to review outlines for the petition and technical report that the coalition plans to submit to EPA later this year. EPA seems willing to consider both the technical and legal arguments of the coalition, based on the discussions that have already been held with coalition members. NACWA will keep members informed on the work of the coalition and will seek input from members of the Climate & Energy Committee and the Air Quality Workgroup on the documents developed by the coalition.

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

Biosolids

 NACWA Prepares for Oral Arguments in SSI Litigation

On April 17, NACWA participated in a “moot court” session to prepare for May 3 oral arguments in the Association’s legal challenge to EPA’s final sewage sludge incinerator (SSI) rule. The session provided an opportunity to practice the arguments NACWA intends to make during the court session, as well as anticipate potential questions of the panel of judges on the actual argument day. The practice round featured a robust set of questions and follow-up discussion among NACWA staff and attorneys working on the litigation, and helped to further hone and refine the key points NACWA intends to make during its allotted argument time. In particular, NACWA plans to focus on the clear statutory errors committed by EPA in the final SSI rule when the Agency ignored congressional directives in both the CAA and Clean Water Act (CWA) for regulation of SSI emissions and in creating new SSI standards in the rule under the wrong section of the CAA.

Additional background information on the litigation, including copies of all relevant briefs, is available on NACWA’s Litigation Tracking page. NACWA will update the membership on the case after the May 3 oral arguments.

Contact: Nathan Gardner-Andrews at 202/833-3692 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Climate Change

 NACWA Issues Comments on National Climate Assessment

NACWA filed comments on April 12 responding to the draft National Climate Assessment (NCA), a report required by the Global Change Research Act of 1990. A Federal Advisory Committee developed this year’s NCA, under the direction of the U.S. Global Change Research Program, a collaboration of 13 federal science agencies. Chapters in the draft NCA that relate to clean water issues include Water Resources; Urban Systems, Infrastructure, and Vulnerability; Mitigation; and Adaptation.

In the Mitigation chapter, the NCA lists the CAA PSD and Title V permitting programs as federal regulations that “target ways to reduce future climate change by decreasing GHG emissions emitted by human activities.” NACWA pointed out that wastewater utilities are performing a necessary and vital function to protect human health and the environment and these regulations will not decrease the GHG emissions from wastewater utilities. Instead, these regulations will only increase the regulatory burden on utilities. In addition, the regulations will decrease the use of biogas and biosolids as a carbon-neutral, renewable fuel source, if an exemption on biogenic emissions is not made permanent.

NACWA’s comments also emphasized the use of green infrastructure to control stormwater runoff and to improve water quality, and the vulnerability of wastewater treatment plants to sea level rise and storm surges. The Association will continue to advocate for the use of green infrastructure by clean water agencies to meet regulatory requirements and for the inclusion of wastewater treatment facilities in federal programs for climate adaptation and resiliency.

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

EPA Staff

 New Director of EPA Office of Wastewater Management

On April 22, EPA announced the new Director of the Office of Wastewater Management (OWM), Andrew Sawyers, to replace Jim Hanlon, who retired in June 2012 after 39 years with the Agency. Randy Hill, who had been acting as director of OWM since Hanlon’s departure, has joined the Environmental Appeals Board. Policy Forum attendees met Sawyers during the Wednesday panel discussion with leaders from EPA’s Office of Water moderated by acting assistant administrator for water Nancy Stoner. Prior to joining OWM, Sawyers served as the Deputy Director of the EPA Office of Groundwater & Drinking Water.

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

Integrated Planning

 NACWA Co-Hosts Integrated Planning Workshops in Regions 5 and 10

NACWA, the Association of Clean Water Administrators (ACWA), and the Water Environment Federation (WEF) are partnering, in conjunction with EPA, to offer a series of Integrated Planning (IP) Workshops around the country. Over the past month, there have been workshops in Region 10 and in Region 5. On April 3 more than 80 stakeholders, including NACWA members, EPA staff, and state regulators, met for the Region 10 Workshop in Portland, Ore. Utilities in the states of Idaho, Oregon and Washington were in attendance, some of which are currently working with their states to implement IP approaches. Other attendees also actively engaged in the Workshop to determine the potential benefits of such an approach. Much of the Workshop’s value was found in the unique opportunity for utility leaders to ask thoughtful questions to EPA Headquarters and Region 10 officials, as well as state regulators, on how IP may be applicable to their specific circumstances and situations.

During the Region 10 Workshop, EPA explained that its IP framework was, above all, about providing communities with greater flexibility in planning their clean water investments – and that the Agency’s role in the process was to assist the state regulators, however possible, to get plans off the ground. EPA Region 10 and the states noted that, in their region, IP is important not just to meet CWA obligations, but also to maintain overall ecological health of their watersheds and protect vital water resources. Washington Department of Ecology and Oregon Department of Environmental Quality leaders provided specific insights into how each state will be involved in the IP process. Both states have put thought and staff effort into determining an internal process for handling community requests to engage in IP. Each spoke about working across their internal “silos” (e.g., stormwater, water quality, enforcement) to make the process run efficiently, and encouraged local governments and utilities to do the same.

Approximately, 85 stakeholders met for the Region 5 Workshop in Indianapolis, Ind. on May 1. Wisconsin, Illinois, Indiana, Ohio and Michigan utilities voiced experiences with IP and participated in spirited discussions with state regulators and EPA staff. Affordability took top priority amid the day’s conversations. Being that the Great Lakes region has the largest number of CSO communities, it was no surprise that dialogue often focused on how IP could apply to CSO issues.

The utility attendees in Regions 5 and 10 were especially interested in all of the possible vehicles in which to embed integrated plans, especially the permit context. Both workshops included extended dialogue of the pros, cons and implications of using a permit versus enforcement, or even a hybrid mechanism to house the plan. NACWA appreciates all the attendees joining us and gives special thanks to the Oregon Association of Clean Water Agencies for providing on-site support for the Region 10 workshop. NACWA will continue to work with ACWA, WEF and our members to plan workshops in the remaining regions throughout 2013. As they are scheduled, more information on workshops can be found on NACWA’s website.

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

Meetings and Conferences

Are Your Pretreatment Professionals Registered for the Only National Workshop Designed Specifically for Them?

There is still time to register for the 21st NACWA Pretreatment & Pollution Prevention Workshop, May 15-17 in Portland, Oregon. As in past years, pretreatment professionals from across the country will benefit from the utility-focused speakers and panels, as well as the unique networking opportunities, provided at the Workshop. This year’s Workshop will include presentations on managing fats, oils, and greases (FOG); preventing problems from flushable wipes and other non-dispersible products; reducing pharmaceutical discharges into the sewer system; and treating brewery wastewater. Case studies will also be included for setting local limits for new industries and unique circumstances. Networking opportunities include the Regional Roundtable session, where participants meet according to their EPA Region, and two Pretreatment Issues Roundtable sessions for discussing a variety of topics of importance to pretreatment programs.

See NACWA’s website for a complete agenda, registration, and travel information.

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

Security and Emergency Preparedness

Water Sector Coordinating Council meets with DHS, EPA

The leaders of the Water Sector Coordinating Council (WSCC) met April 24 with officials from the Department of Homeland Security (DHS) and EPA to discuss sector security and resiliency issues, with an emphasis on cybersecurity initiatives resulting from the February 12 Executive Order (EO) and Presidential Policy Directive 21 (PPD-21). Charles Hilton, Breezy Hill Water & Sewer, South Carolina, is Chair of the WSCC, and Patty Cleveland, Assistant Regional Manager with the Trinity River Authority, Texas, and a NACWA Board member, serves as Vice Chair.

In the meeting with Caitlin Durkovich, Assistant Secretary for Infrastructure Protection for DHS, the EO and PPD-21 – which aim to improve the cybersecurity of the nation's infrastructure – were the main topics of discussion (see related story below). Hilton and Cleveland emphasized the extensive voluntary work that the water sector has done to improve both physical security and cybersecurity, and urged that any recommendations resulting from the EO and PPD-21 be voluntary. At a separate meeting with Peter Grevatt, Director of EPA's Office of Ground Water & Drinking Water, Hilton and Cleveland discussed the need to continue the cooperative partnership between EPA's Water Security Division and the WSCC. The WSCC and water sector associations will have the opportunity to review and provide comments on the draft cybersecurity framework that is scheduled for publication in October. The final framework is expected in early 2014.

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

NACWA Submits Comments on Cybersecurity Framework

NACWA submitted comments on April 8 to the National Institute of Standards & Technology (NIST) regarding the development of a Cybersecurity Framework for Critical Infrastructure. Executive Order (EO) 13636, Improving Critical Infrastructure Cybersecurity, charged NIST with developing the Framework, with a draft due this fall and a final version due in February 2014. The EO states that the Framework should incorporate voluntary consensus standards and industry best practices as much as possible. The Framework itself will not include any regulations. More details about the EO and the accompanying Presidential Policy Directive 21 (PPD-21) on Critical Infrastructure Security & Resilience are contained in NACWA Advocacy Alert 13-04.

NACWA’s comments to the request for information by NIST emphasized the wide variety of wastewater treatment utilities and the flexibility needed in any recommendations addressing cybersecurity. The Association also explained the costs utilities are already facing to upgrade their infrastructure and to meet their CWA regulatory requirements, asking that any burdens resulting from the Framework’s recommendations “be proportional to the risks associated with a cybersecurity incident at a wastewater facility.” NACWA also encouraged NIST to “consider the measures already taken voluntarily by utilities and the improvements that utilities will continue to make to their cybersecurity as risks are identified.” Finally, the Association recommended that NIST provide multiple opportunities for comment as the Framework is developed.

NACWA will monitor the development of the Framework and other aspects of the EO and PPD-21 implementation through its involvement with the WSCC. The Association will also ask for input from members of its Security & Emergency Preparedness Committee as draft documents related to cybersecurity are released.

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

Stormwater

As Stormwater Rule Deadline Looms, NACWA Continues Advocacy

NACWA continued discussions with EPA’s Office of Water as the Agency works to develop a new national post-construction stormwater rule, with the rule’s June proposal deadline swiftly approaching. On April 10, NACWA staff met with EPA staff at their offices and discussed the progress of the rule and possible assistance that NACWA and its members could provide during the final phases of their analysis. EPA is currently finalizing one of the most complex cost-benefit analyses of any previous rule, which in addition to traditional infrastructure costs, also includes difficult to calculate “avoided” and “opportunity” costs. NACWA believes the attention to detail in the cost analysis represents EPA’s understanding of the nuanced cost burden this rule may place on utilities and municipalities, and indicates that they want to ensure that the process is fully vetted. At the same time, the cost analyses are taking longer than anticipated, in large part due to the unique nature of the stormwater rulemaking. While EPA continues to operate under a June 10, 2013 deadline to propose the rule, NACWA’s conversations with Agency staff strongly suggest the proposal will not be completed in time and that the release date will be pushed back. The timeframe for release will likely become clearer in the coming weeks.

As part of NACWA’s National Environmental Policy Forum, the stormwater rule was highlighted when Connie Bosma, EPA’s Municipal Branch Chief, spoke at the joint Facility and Collection Systems and Stormwater Committee meeting on April 22. Bosma’s presentation provided an update on the rulemaking process and featured an in-depth look at the major elements of the rule and cost analysis.

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

EPA Releases Report on Secondary Treatment to Meet Obligations in NRDC Lawsuit

During NACWA’s National Environmental Policy Forum, Betsy Southerland, Director of the Office of Science & Technology, announced the release of EPA’s report on the performance of secondary treatment. The Agency issued the report in response to the Natural Resources Defense Council’s (NRDC) petition and lawsuit seeking to modify the definition of secondary treatment to include nutrients. When EPA denied NRDC’s petition, the Agency committed to issuing this report to meet its CWA obligation to publish information on the performance of secondary treatment. The 4-page report indicates that activated sludge plants are significantly outperforming the basic secondary treatment requirements of 30 mg/L total suspended solids and 30 mg/L biochemical oxygen demand on a 30-day average, which is consistent with the data NACWA has collected over the past decade through its Financial Survey.

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

NACWA Advances Legal Advocacy in Trading Litigation

NACWA filed its answer   on April 22 in federal litigation over water quality trading programs in the Chesapeake Bay, advancing the Association’s efforts to defend trading in a lawsuit with potential national implications. NACWA’s filing responds to an amended complaint lodged by environmental activist groups in February and acknowledges that some NACWA members within the Chesapeake Bay watershed are already engaged in trading programs that could be adversely impacted by the litigation. NACWA previously requested  , and was granted, intervention in the case to help EPA defend trading as an important tool to achieve water quality improvements through the use of effective, verifiable market-based systems.

The lawsuit was filed by a coalition of environmental activist groups challenging the trading approach endorsed by EPA in the final Chesapeake Bay total maximum daily load (TMDL). This case has the potential to impact trading programs involving wastewater and stormwater sources, and has implications not just for the Chesapeake Bay region but for all water quality trading efforts nationally. NACWA has been joined in the lawsuit by a broad coalition of municipal and trading interests, including the Virginia Association of Municipal Wastewater Agencies (VAMWA), the Maryland Association of Municipal Wastewater Agencies (MAMWA), the North Carolina Water Quality Association, the Virginia Nutrient Credit Exchange Association, and the Wet Weather Partnership.

EPA filed a Motion to Dismiss   the case on April 22. EPA requested dismissal on procedural grounds, arguing that the plaintiffs have failed to identify a sufficient legal injury or specific EPA action that warrants legal review. While NACWA is supportive of EPA efforts to defend the case, the Association also believes a substantive ruling from the court affirming the legal validity of trading programs under the CWA is important to limit any future legal challenges and provide legal certainty going forward for trading programs across the country.

The Association plans a meeting with EPA soon to discuss a coordinated response to the lawsuit that provides the greatest level of protection for trading approaches. The membership will receive updates on key developments, and additional information on the case can be found on NACWA’s Litigation Tracking webpage.

Contact: Nathan Gardner-Andrews at 202/833-3692 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .