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July 12, 2013
Federal Court Denies EPA’s Petition for Rehearing of Blending Decision
The U.S. Court of Appeals for the Eighth Circuit denied EPA’s May 9 request for rehearing of a significant decision on the use of peak wet weather flow blending this week, preserving an important legal victory for the clean water community. EPA sought rehearing of a previous March 25 decision invalidating key elements of the Agency’s improper efforts to regulate blending and raising significant concerns about the their ongoing attempts to limit wet weather treatment options. (See March 29 Clean Water Current for additional details on the original ruling.)
EPA sought to have the decision reviewed by the full Eighth Circuit, arguing the original ruling was legally flawed and conflicted with decisions from other federal courts. As part of its rehearing request, EPA argued in unambiguous language that it may regulate internal waste streams within the treatment plant: “EPA may, consistent with the CWA, regulate bypass and prohibit the diversion of waste streams from secondary and other treatment units even if a POTW is discharging in compliance with end-of-pipe effluent limitations.” (See May 10 Clean Water Current for additional details on EPA’s rehearing request.)
Although the Eight Circuit provided no explanation in its July 10 order for its rehearing denial, it clearly rejected EPA’s position on efforts to regulate wet weather treatment options at the plant. There are no further options for appeal at the appellate level. EPA may file a petition for appeal with the US Supreme Court within 90 days of the Eighth Circuit’s denial of rehearing; however, given the small percentage of cases the Supreme Court accepts for review, there is minimal likelihood it will grant the petition. NACWA will closely monitor developments before the Supreme Court involving this case and is prepared to take legal action to help defend the ruling if appropriate.
While it is still unclear exactly how EPA will react to the original March ruling from a permitting and enforcement perspective, NACWA strongly encourages its members to use the decision to attempt to secure greater flexibility in selecting peak flow management options. If utilities find that permitting authorities continue to use bypass or secondary treatment regulations to try and limit internal wet weather treatment options at the plant, utilities may use this case to argue that such efforts are illegal under the Clean Water Act. NACWA believes peak flow treatment techniques play an integral role in helping utilities provide maximum treatment to wet weather flows and protect water quality, and will continue to push back against EPA regulatory overreach in this area.
The House of Representatives passed a scaled back version of the Farm Bill on Thursday by a vote of 216 to 208. The controversial House Nutrition Title containing the food stamp program was removed, winning back some conservative votes and making way for the bill’s narrow passage. No democrats supported the bill out of opposition to the removal of the food stamps program from the package. The Regional Conservation Partnership Program was included in the House Conservation Title, although language that the HWC successfully worked to incorporate in the Senate-passed farm bill on nutrient management was not included.
It remains to be seen what the next steps will be. Senator Stabenow (D-MI), Chairwoman of the Senate Agriculture Committee, has given early indication that the House and Senate Farm Bills may go to conference. Should this happen, the food stamp issue would reemerge, making final passage of the bill difficult to achieve. NACWA is monitoring the Farm Bill’s progress and will provide updates as they become available.
The NACWA Government Affairs team sat down last week with Andrew Sawyers, the new director of EPA’s Office of Wastewater Management (OWM) to provide an overview of the Association’s positions on a range of issues including integrated planning; wet weather; funding; pretreatment; climate change; and, financial capability. At EPA’s request, NACWA held off on meeting with Sawyers until July to allow him to get settled into his new position, but it was clear from the discussion that Sawyers is up-to-speed on all of OWM’s issues.
Sawyers, the permanent replacement for Jim Hanlon who retired in 2012, re-affirmed his office’s commitment to the integrated planning framework and to pursuing increased use of the framework in the permitting context. NACWA also provided a brief update on its Water Resources Utility of the Future initiative and Sawyers indicated that his office will work with the Association on this – and will also be exploring how to engage small utilities in these types of efforts. Sawyers, whose background includes work at the state level and water quality financing, also expressed interest in working with NACWA on the future of the state revolving loan program. It was clear from this initial meeting that NACWA’s strong working relationship with OWM will continue under Sawyers’ watch.
A coalition of environmental activist groups submitted three petitions on July 10 to EPA Regions 1, 3, and 9 asking the respective Regional Administrators to invoke EPA’s rarely used “residual designation authority” (RDA) and require Clean Water Act (CWA) discharge permits for certain industrial, commercial, and institutional sites discharging stormwater to impaired waterways. The coalition of activist groups, led by American Rivers, the Natural Resources Defense Council (NRDC), and the Conservation Law Foundation (CLF), argues that stormwater runoff from these sources is a major source of water quality impairment around the nation; therefore, EPA should use its authority under CWA Section 402(p)(2)(E) – also known as RDA – to issue individual permits directly to these specific dischargers, which are currently unregulated and may be discharging stormwater directly into a waterway or to an adjacent municipal separate storm sewer system (MS4) system.
By requiring large, primarily privately owned properties (such as shopping centers, strip malls, airports, and large industrial areas) with significant amounts of impervious surface to obtain CWA discharge permits, these petitions seek to reduce existing stormwater pollution loadings. Such requirements would likely force the property owners to reduce areas of existing impervious surface through retrofits and retain more stormwater runoff onsite. The petitions do not call for any additional regulation on existing MS4 permittees, but instead focus on permits for currently unregulated commercial, industrial, or institutional dischargers.
NACWA is currently reviewing the petitions and any potential impacts on municipal stormwater utilities. To the extent EPA’s response and new permitting requirements focus solely on large, privately owned stormwater dischargers contributing to water quality impairment, such a permitting scheme could provide a more equitable distribution of the regulatory and economic costs of managing stormwater between MS4s and private commercial/industrial land owners. However, NACWA is concerned that the definition of “commercial, industrial, or institutional” properties as used in the petitions is unnecessarily broad and could include some municipal properties. The Association is also wary of how EPA may assign administrative responsibility, and would be opposed to any efforts that might require existing MS4s to carry out additional monitoring and/or enforcement duties related to RDA-based stormwater permits.
House Passes Water & Energy Appropriations Bill; Prohibits EPA Use of Funds to Clarify Clean Water Act Jurisdiction
The House of Representatives on Wednesday passed the FY 2014 Energy and Water Appropriations Bill which provides annual funding for the Army Corps of Engineers, various programs under the Department of Energy, and other related agencies. The bill totals $30.4 billion – a cut of $2.9 billion below the FY 2013 enacted level and $4.1 billion below the President’s FY 2014 request. The bill contains a provision to prohibit funds to be used by the Army Corps of Engineers to clarify the definition of jurisdictional waters under the Clean Water (CWA). Congressman Jim Moran (D-VA) offered an amendment that would have removed this language but it was voted down. This has been a long-standing topic of partisan contention, and although provisions to strip funding from the Army Corps of Engineers to clarify the jurisdictional reach of the CWA have been proposed in other appropriations bills, the provision has never been enacted to date. NACWA will continue to monitor this language as the appropriations process continues, and we will provide members with any relevant updates as they become available.
Following the release of the Water Resources Utility of the Future . . . Blueprint for Action, NACWA, the Water Environment Federation (WEF) and the Water Environment Research Foundation (WERF), have started to focus work on the energy-water nexus, which makes up perhaps the largest component of the work outlined in the Blueprint. On Monday, NACWA, WEF and WERF met to discuss a collaborative plan to maximize success in the Utility of the Future (UOTF) energy sphere. As outlined in the recent UOTF Member Update, all three organizations have been meeting separately with staff from the Department of Energy (DOE) on these issues and at the meeting, representatives from each organization provided updates on these conversations with both DOE and EPA. The discussion also focused on opportunities to collaborate on an effort to better estimate the energy potential from clean water agencies, as well as to gather comparative data between the water sector’s ability to generate energy and other clean energy producers such as wind and solar. In addition to continuing to discuss the energy-water nexus with DOE and EPA, NACWA, WEF and WERF will be discussing potential collaborative advocacy efforts on these issues in the coming weeks. The Association will keep members updated of any developments on the collaboration with WEF and WERF on all UOTF activities.
EPA Holds Public Meeting on Steam Electric Power Generating ELG; NACWA Requests Information for Comments
EPA held a public meeting this week on its proposed effluent limitation guidelines (ELGs) and pretreatment standards for the steam electric power generating industry. The ELGs and standards for this industry were last updated in 1982, and EPA is considering four alternatives for regulation of discharges from existing power plants. The alternatives vary in the number of waste streams covered, the size of the units controlled, and the stringency of the controls that would be imposed. During the meeting, EPA heard comments from the public, but did not respond. The meeting was dominated by environmental groups that urged EPA to set the strictest possible limits on direct discharging power plants.
The White House Council on Environmental Quality (CEQ) and EPA convened a forum, Financing the Water Infrastructure of the Future, last week to explore innovative financing opportunities for green infrastructure with a specific focus on public-private partnerships. The agenda included presentations from CEQ, EPA, the National Economic Council, the Government Accountability Office, and a number of local organizations. The forum featured a strategy session to discuss policy priorities, which Ken Kirk, NACWA’s Executive Director, and a number of NACWA member agency representatives from Chicago, Philadelphia, Onondaga County, and Milwaukee participated in. The meeting underscored the Administration’s continued support for green infrastructure, as a viable tool in the municipal toolbox, to deal with wet weather challenges and the need to think creatively to maximize collaborative financing for these efforts. While it is unclear at this point in what direction CEQ will ultimately take this initiative, NACWA will continue to track developments and work closely on these and related green infrastructure issues.
NACWA is pleased to announce the addition of Amanda Waters to the Association’s staff as Deputy General Counsel, effective July 1. Amanda is a veteran municipal clean water advocate, previously serving as Deputy Executive Director & General Counsel for Member Agency the Sanitation District No. 1 of Northern Kentucky, as well as Executive Director of Sustainability for Member Agency the New York City Department of Environmental Protection. She has also worked at the state level as the Deputy General Counsel for the State of Kentucky Environmental & Public Protection Cabinet.
Immediately prior to joining NACWA, Amanda served as General Counsel and Director of Public Advocacy & Outreach at the Water Environment Federation (WEF), where she played a key role in advancing WEF’s advocacy agenda and promoting collaboration within the water sector. Her transition to NACWA will allow her to continue a strong emphasis on cooperative efforts, while also utilizing her robust advocacy skills on behalf of the Association’s members.
This week’s blog post explores the Natural Resources Defense Council’s Annual Beach Report. The Report identifies sewage spills and overflows as the lowest known source of beach pollution, representing only ten percent of total closings and advisories. The Report’s findings demonstrate that while there is still more work to be done, wastewater and stormwater agencies continue to make strides in addressing potential sources of contamination to our Nation’s beaches and to waterways across the country.
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