| To: |
Members & Affiliates, Legislative and Regulatory Policy Committee |
| From: |
National Office |
| Date: |
August 1, 2013 |
The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the July 2013 Regulatory Update. This Update provides a summary of relevant regulatory issues and actions current to the end of July 2013.
Top Stories
EPA to Release Proposed Revisions to Water Quality Standards Regulations
EPA’s proposed rule to amend portions of its Water Quality Standards (WQS) Regulations has cleared one of its final hurdles. The proposal had been stuck at the Office of Management and Budget (OMB) since November 2011, but was finally released on July 23. NACWA expects the Agency to move quickly to sign the proposal and release it for public comment. Although that process could still take several weeks, NACWA hopes to obtain a pre-publication version of the rule to begin its review.
EPA issued a notice in 2010 that outlined several revisions the Agency was considering with this rulemaking. NACWA submitted comments on September 22, 2010, raising several concerns with the six areas EPA intended to target. While NACWA agrees with some of the changes EPA is expected to address, the Association’s 2010 comments noted that the changes do not warrant significant revisions to the WQS regulations at this time, and that “for most of the areas the Agency is targeting, additional guidance to the states, instead of new regulatory provisions, would suffice.” The rule is expected to address the following:
- Antidegradation: Requiring implementation methods to be adopted in rule and specify minimum requirements;
- Administrator’s determination: Clarifying what constitutes an Administrator’s determination under 303(c)(4)(B);
- Uses: Clarifying EPA’s minimum expectations for designated uses;
- Variances: Establishing a regulatory structure and transparency for use of variances;
- Triennial Reviews: Strengthening the triennial review requirements; and,
- Recent Court Decisions: Defining a WQS, addressing compliance schedule authorizing provisions, and revising WQS submittal requirements.
While the rule revisions will have the most impact on Clean Water Act authorized states, several of the changes could eventually impact clean water agencies. NACWA will alert the membership and solicit comments as soon as the proposed rule becomes available.
Contact: Chris Hornback at 202/833-9106 or
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NACWA Seeks Member Input on EPA’s Proposed Electronic Reporting Rule
EPA’s long-awaited proposed rule to require electronic reporting under the National Pollutant Discharge Elimination System (NPDES) permit program was signed by Bob Perciasepe, then acting administrator of EPA, on July 15. The rule, if finalized, would apply to all NPDES permit holders. Under the proposal, clean water agencies would be required to electronically submit discharge monitoring reports (DMRs), pretreatment and biosolids reports, and combined and sanitary sewer overflow event reports. All of this information is already required by existing regulation, but EPA’s proposal would add greater specificity to the type and format of the information to ensure a consistent national dataset. The Agency proposal would also require states to submit much of the NPDES-related information they provide through electronic means.
EPA anticipates that this increase in electronic reporting will make all information easily accessible and publicly available (with limited exceptions for some sensitive data like confidential business information) through a national database. The Agency’s enforcement office has had the lead role in developing this proposal. EPA’s hope is that in addition to decreasing the burden on permit holders and the states, electronic reporting will lead to increased compliance with the Clean Water Act. The proposal outlines the types of information that will be required to be submitted electronically and discusses EPA’s preferred alternative to pursue an open-source approach to develop the software necessary to make the reporting possible. The Agency hopes that this will encourage third-party software companies to develop programs that meet discharger needs and are compliant with requirements, much like the approach used by the Internal Revenue Service for income taxes.
EPA estimates that, over the first three years of implementation, the cost to all permit holders will total approximately $18.5 million, but that in future years the change will result in no additional costs – and perhaps even some minor savings in reduced burden. States stand to save the most from this new rule, with estimated annual savings approaching $30 million. The Agency will accept comments on the rule through October 28. NACWA welcomes comments on all aspects of the proposal.
Contact: Brenna Mannion at 202/533-1839 or
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Federal Court Denies EPA’s Petition for Rehearing of Blending Decision
The U.S. Court of Appeals for the Eighth Circuit denied on July 10 EPA’s request for rehearing of its earlier decision on the use of peak wet weather flow blending, preserving an important legal victory for the clean water community. EPA sought rehearing of the March 25 decision invalidating key elements of the Agency’s efforts to regulate blending and raising significant concerns about the Agency’s ongoing attempts to limit wet weather treatment options.
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 that it may regulate internal waste streams within the treatment plant: “EPA may, consistent with the CWA [Clean Water Act], 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.”
Although the Eighth Circuit provided no explanation in its July 10 order for its rehearing denial, it clearly rejected EPA’s position on regulating 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 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 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.
Contact: Nathan Gardner-Andrews at 202/833-3692 or
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Climate and Energy
Court Vacates EPA’s Biogenic Greenhouse Gas Deferral
On July 12, a federal court ruled in Center for Biological Diversity, et al. v. EPA that EPA failed to provide legal justification to support its deferral of greenhouse gas (GHG) permitting requirements for biogenic emissions. The U.S. Court of Appeals for the District of Columbia (D.C. Circuit) vacated EPA’s three-year Deferral Rule resulting in uncertainty over the permitting requirements for biogenic sources, which include emissions from wastewater treatment processes and the combustion of biogas and biosolids, as well as the combustion of other biomass, such as agricultural and forest products. The court did not close the door on EPA’s authority to finalize its rulemaking, but emphasized the need and urgency for the Agency to expedite that process in order to provide clarity and consistency.
In June 2010, EPA released its GHG Tailoring Rule applying permitting regulations to large stationary sources of carbon dioxide (CO2). The Agency did not exclude biogenic emissions, which occur as a result of combustion or decomposition of biological materials and are considered part of the natural carbon cycle. Without an exclusion, the CO2 emissions from the wastewater treatment process, as well as combustion of biosolids and biogas, will be subject to Clean Air Act (CAA) Prevention of Significant Deterioration (PSD) and Title V permitting programs. NACWA and other industries impacted by the rule, objected to the inclusion of biogenic emissions, emphasizing the carbon neutrality of these emissions. This led EPA, in January 2011, to institute the three-year deferral while it conducted scientific analysis and developed a rulemaking to specifically address these emissions. When environmental groups filed a legal challenge to the deferral, NACWA filed an amicus brief in the case explaining why biogenic emissions from clean water agencies are different in nature, noting the short carbon cycle associated with human waste and the unavoidable nature of the emissions. The brief also emphasized the hardship that would occur if clean water agencies were forced to comply with the permitting requirements.
NACWA, as a member of the Biogenic CO2 Coalition, is involved in drafting a technical report and petition for rulemaking to exclude short cycle CO2 emissions from CAA permitting programs. Because the July 12 ruling does not foreclose a statutory exclusion of biogenic emissions, the work of the Coalition is now even more critical. The Association will continue to work with the Coalition to accelerate the advocacy strategy in light of the July 12 ruling.
Contact: Cynthia Finley at 202/533-1836 or
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NACWA Urges Inclusion of Wastewater-Derived Fuels in Renewable Fuel Standards
NACWA requested that EPA reconsider the status of renewable biofuels derived from wastewater, biosolids, and biogas in July 15 comments on the Agency’s proposed changes to its renewable fuel standards (RFS2) program. When used as transportation fuels, qualifying fuels in the RFS2 program are eligible for renewable identification numbers (RINs), which can be sold to fossil fuel refiners that must meet renewable fuel quotas. EPA’s proposal would allow fuel derived from landfill gas to qualify as a cellulosic feedstock in the RFS2 program. While renewable fuels derived from wastewater are not currently eligible fuel production pathways in the RFS2 program, NACWA argued that wastewater biogas is derived from the same process as landfill gas and should also be included as a cellulosic feedstock for the generation of renewable electricity, compressed or liquefied natural gas, and cellulosic diesel.
As part of the Association’s Water Resources Utility of the Future efforts to increase resource recovery and energy generation at wastewater utilities, NACWA will continue to push EPA and other federal agencies to fully recognize that the fuels produced at wastewater utilities are completely renewable, without detrimental land use and other impacts that are caused by the production of crop-based fuels.
Contact: Cynthia Finley at 202/533-1836 or
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NACWA, WEF, WERF Discuss Energy/Water Nexus with EPA
NACWA, along with representatives from the Water Environment Federation (WEF) and the Water Environment Research Foundation (WERF), met with EPA water office staff on July 29 to discuss ongoing efforts to engage the Department of Energy (DOE) on energy-water nexus issues. NACWA, WEF and WERF, building on their joint Water Resources Utility of the Future Blueprint, have had several discussions with DOE staff on how best to tap into the resources available for energy efficiency and generation research and deployment. EPA and DOE began quarterly meetings on the subject earlier this year and DOE is expected to lay out its plan for working on energy-water nexus issues later this year. During the July 29 meeting, EPA and the water sector groups discussed how they can coordinate their efforts as discussions continue with DOE. One of the top challenges will be developing a more robust and detailed estimate of the energy potential from the water sector. NACWA, WEF, and WERF are embarking on a project that will build on existing WERF research to develop such an estimate by early fall. The water sector groups and EPA committed to meeting regularly going forward.
Contact: Cynthia Finley at 202/533-1836 or
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NACWA, WEF, and WERF Provide Waste-to-Energy Information to DOE
NACWA, the Water Environment Federation (WEF), and the Water Environment Research Foundation (WERF) continued their work on the energy component of the Water Resources Utility of the Future… Blueprint for Action by jointly responding to a Department of Energy (DOE) Request for Information (RFI) on Waste Applications for Sustainable Technologies for Energy (WASTE). The purpose of the RFI was to seek feedback that would assist DOE with the development of a strategic advanced waste-to-energy program that could possibly lead to a Funding Opportunity Announcement (FOA). NACWA, WEF, and WERF developed responses to each of the three categories of interest in the RFI: the state of the waste-to-energy industry and technology development; moving from pilot to commercial scale in waste-to-energy efforts to produce fuels and power; and modular/distributed and community scale applications of waste-to-energy. The three associations plan to schedule a meeting with DOE to continue the conversation on how the federal agencies can facilitate the increased generation of renewable energy from wastewater treatment.
Contact: Cynthia Finley at 202/533-1836 or
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EPA/Regulatory Policy
NACWA Meets with New EPA Wastewater Management Office Director
The NACWA Government Affairs team met with Andrew Sawyers, the new director of EPA’s Office of Wastewater Management (OWM), on July 2 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 delayed 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 now 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.
Contact: Chris Hornback at 202/833-9106 or
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Facilities & Collection Systems
NACWA, INDA, and Key Stakeholders Discuss Path Forward on Wipes
NACWA convened a meeting on July 25 with representatives of INDA (the association representing the Nonwoven Fabrics Industry), key manufacturers, wastewater utilities, and other groups to discuss how to reduce the problems that utilities experience with wipes that are flushed into the sewer system. Following the Association’s June 18 letter recommending changes to the draft third edition of their Guidelines for Assessing the Flushability of Disposable Nonwoven Products, INDA requested a meeting with NACWA, the Water Environment Federation (WEF), and the American Public Works Association (APWA), who have been working collaboratively on this issue. INDA members in attendance represented the majority of wipes manufacturers in the U.S. Representatives from NACWA member agencies were Nick Arhontes, Orange County Sanitation District, Calif.; Frank Dick, City of Vancouver, Wash.; Kenny Waldroup, City of Raleigh, NC; and Bob Swarner, King County Department of Natural Resources and Parks, Wash.
During the meeting, the associations and their representatives focused on areas of agreement and developed a plan to address several remaining areas of disagreement. INDA, NACWA, WEF, and APWA will be working together on a statement that expresses their interest in cooperating to reduce products inappropriately disposed of via flushing. The associations will evaluate their degree of agreement on issues, including INDA’s flushability guidelines and its Code of Practice for using a standard “Do Not Flush” symbol on products that are non-flushable. INDA, in turn, will provide the associations with additional information on how the Code of Practice will be implemented. A joint workgroup will be established to examine the flushability guidelines, which are considered by INDA to be a living document that can be revised as needed. The associations acknowledged that, after this initial work is completed, third-party research may be needed to resolve some areas of disagreement on technical and consumer education.
The associations will report on this effort, and the significant progress being made, during a session on non-dispersible products at WEFTEC on October 9. NACWA will provide additional information and seek key data and information from Members Agencies to advance this effort in a forthcoming Advocacy Alert.
Contact: Cynthia Finley at 202/533-1836 or
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Integrated Planning/Financial Capability
Launch of Integrated Planning Webpage and Upcoming Workshop
NACWA’s website now features an Integrated Planning (IP) resource page, created in response to member agency feedback noting a lack of readily available IP information and guidance. The webpage houses valuable resources, examples of integrated plans from public agency members, and guidance documents to assist clean water agencies. It also allows utilities exploring IP options to see how other communities have engaged local regulators and EPA in their processes. Timely information on NACWA’s continued IP advocacy is also included.
NACWA will partner with the Association of Clean Water Administrators (ACWA) and the New England Interstate Water Pollution Control Commission (NEIWPCC), in collaboration with EPA, to offer a Region 1 IP Workshop on September 9 in Portsmouth, New Hampshire. The workshop will bring together key stakeholders – including regulators from each state in the Region, EPA Headquarters and Regional staff, and the utility community – for a candid discussion of Integrated Planning Framework implementation. Prior regional workshops have garnered impressive attendance, and Region 1 is primed to be a popular event with a dynamic discussion of permit/enforcement issues, barriers, and lessons learned. Registration information will be distributed in early August. Utilities are encouraged to provide NACWA with useful reports or information about their IP process for inclusion on the issue page, or contact us for additional information about the upcoming IP Workshop.
Contact: Brenna Mannion at 202/533-1839 or
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NACWA Discusses Financial Capability with EPA Water, Enforcement Staff
NACWA met with EPA water and enforcement office staff on July 30 to discuss the Association’s most recent financial capability paper, The Evolving Landscape for Financial Capability Assessment – Clean Water Act Negotiations and the Opportunities of Integrated Planning, in more depth. During the meeting, EPA reiterated that it will not be revising its 1997 guidance on financial capability or moving away from use of the matrix calculations in that document as a baseline for negotiations. However, the Agency is working on a Financial Capability Framework that EPA hopes will further outline the flexibility it believes is available to utilities to provide additional information on and justification for what is affordable. EPA expects to have a draft of the Framework in early September and plans to share it with NACWA at that time for feedback and comments. EPA will also be discussing the draft Financial Capability Framework with the U.S. Conference of Mayors in an October meeting and hopes to issue a final Framework by the end of the year.
EPA indicated during the meeting that the cash flow forecasting approach laid out in NACWA’s most recent paper will be included in the new Framework as an option available to utilities. While the Framework is expected to still rely on the 1997 guidance as the foundation for the government’s negotiations, EPA acknowledged that many consent decrees are already being based on assessments like cash-flow forecasting, not the 1997 matrix. The Agency may include examples in the Framework where this has been done successfully to highlight the flexibility EPA intends to provide. While EPA will not back away from its matrix calculations, the hope is that this new framework will show that where communities have the knowledge and willingness to push back, they have been successful in using more rational approaches to financial capability.
NACWA noted during the meeting that the flexibility EPA believes is already in its guidance is not really being seen out in the trenches in real negotiations. EPA is hopeful that this new Framework, which will be sent to the Regional Administrators, will help to improve negotiations. NACWA will alert the membership when it receives a copy of the new Financial Capability Framework.
Contact: Chris Hornback at 202/833-9106 or
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Pretreatment & Pollution Prevention
EPA Holds Public Meeting on Steam Electric Power Generating ELG; NACWA Seeks Input for Comments
EPA held a publicmeeting on July 9 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.
NACWA and its Pretreatment & Pollution Prevention Committee will review the proposed pretreatment standards and submit comments by the September 20 extended deadline. Association members are encouraged to submit input on the pretreatment standards, particularly information about steam electric power plants that discharge to their facilities.
Contact: Cynthia Finley at 202/533-1836 or
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Stormwater
Environmental Groups Petition EPA on Individual Stormwater Dischargers
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, the petitions argue, 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 for 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. The Association is primarily 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.
NACWA welcomes any comments from its members by August 9 on the petitions as it formulates the Association’s response. EPA must respond to the petitions within 90 days and, in the meantime, NACWA will track any developments.
Contact: Brenna Mannion at 202/533-1839 or
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Water Quality
NACWA, the Federal Water Quality Coalition (FWQC) Meet with EPA on TMDL Guidance
NACWA, the Federal Water Quality Coalition (FWQC), and partners met on July 19 with EPA to discuss three key total maximum daily load (TMDL) documents. These documents included the latest TMDL "vision document," the draft guidance on revising and withdrawing TMDLs, and the upcoming 2014 listing guidance. These documents were reviewed and discussed with Watershed Branch staff. The TMDL vision document is a high-level overview document that discusses the potential redirection of state resources away from the numbers of TMDLs issued to focus more on their efficacy. This will be released at the ACWA annual meeting in the first week of August. EPA and States are interested in shifting their measure of near-term success for the TMDL program, starting in FY 2015, from the number of TMDLs completed to the extent of priority waters that are being addressed in some way (as long as the method is one designed with WQ endpoint in mind).
EPA noted that the revising and withdrawing TMDLs guidance document may be released as typical guidance or potentially in the form of FAQs, by the end of 2013. There was extensive discussion about the interpretations of water quality standards and the provision that specifies that the only way to move allocations between point (WLA) and nonpoint (LA) is through revising a TMDL (subject to EPA approval) or through a trading program.
The 2014 listing guidance is expected to be issued by the early Fall. EPA has been working with the States on options for changing the listing cycle so lists would not have to be submitted every 2 years or changing the process in some way so that not all of the work must be done that frequently. This would address their concern about lists often being submitted past the required deadlines. NACWA will provide members with the guidance documents as they become available.
Contact: Chris Hornback at 202/833-9106 or
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