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

Top Stories

EPA Releases Final Ammonia Criteria

EPA released its Final Aquatic Life Ambient Water Quality Criteria for Ammonia  on August 22. The revised criteria are significantly more stringent than the existing criteria, last updated in 1999. Subsequent to releasing its draft revised criteria in 2009 for comment, where EPA proposed using a bifurcated approach with both mussels present and mussels absent criteria values, EPA reviewed additional studies confirming that gill-breathing snails were similarly sensitive to ammonia. In finalizing the criteria, EPA included only one acute and one chronic value for ammonia, which will apply to all waters regardless of what aquatic species are present. EPA does not preclude, however, the development of site-specific criteria using a recalculation procedure to better account for the organisms that reside at a particular site.

EPA held a briefing for NACWA members via conference call on August 19, prior to the release of the criteria. During that call, EPA provided an overview of the final criteria values and how they compare to the existing values and the draft/proposed criteria values from 2009. The criteria are expressed as a function of temperature and pH, and the values below are based on a pH of 7 and water temperature of 20 degrees C:

Acute – Current (1999): 24; Proposed (2009): 19; FINAL (2013): 17
Chronic – Current (1999): 4.5; Proposed (2009): 0.91; FINAL (2013): 1.9
(in mg of Total Ammonia Nitrogen; the 1999 and 2009 values above are the more stringent values based on the presence of a sensitive species)

EPA also published supporting documents, most importantly the Flexibilities for States Applying EPA's Ammonia Criteria Recommendations  and Revised Deletion Process for the Site-Specific Recalculation Procedure for Aquatic Life Criteria, to assist states in both the adoption of the new recommended criteria into their water quality standards (addressing variances, designated use changes, and dilution allowances), and development of alternative, site-specific criteria where appropriate. NACWA’s advocacy during the nearly 10 year process to revise these criteria focused on the need for EPA to publish this type of implementation guidance concurrent with release of the criteria.

NACWA needs member feedback on the final criteria values, the implementations materials and any anticipated compliance costs or other problems that may be associated with implementing these new criteria values. To view the criteria document and all supporting information online, click here.

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 Secures Partial Victory with Sewage Sludge Incinerator Rule Remand in Court Ruling

NACWA secured a partial legal victory on August 20 when a federal appeals court issued a decision  in the Association’s challenge to EPA’s Sewage Sludge Incinerator (SSI) rule, agreeing with NACWA that EPA’s technical basis for the rule was flawed and remanding the regulation back to the Agency for changes. The ruling from the U.S. Court of Appeals for the District of Columbia Circuit caps a two-and-a-half year legal effort led by NACWA to push back on the SSI rule and secure more environmentally and economically appropriate emission limits for SSI units. NACWA also distributed a press release and a blog post applauding the decision.

The court’s ruling marks an important partial victory for NACWA and its SSI members in the case, upholding NACWA’s position that EPA must gather and analyze the appropriate data to reassess, justify, or potentially revise the SSI rule. NACWA set forth two main challenges to the rule in the lawsuit: a challenge to EPA’s statutory authority for promulgating the rule, and a challenge to EPA’s technical basis for the emission standards in the final rule. In the decision, the court sided with EPA on the statutory argument, but sided with NACWA on the majority of the Association’s technical arguments. The court further remanded a number of technical issues back to EPA for additional consideration. This means the court is telling EPA that many of its technical justifications in the rule are not legally adequate and the Agency must provide additional explanations for the emission limits in the SSI Rule or develop new emission limits entirely. EPA must now make changes to the rule on remand consistent with the court’s direction, providing NACWA with an additional opportunity to weigh in with EPA via comments and other advocacy efforts during that process to try and get the rule’s emission limits changed.

While NACWA is disappointed the court did not agree with its statutory arguments in the case and with its decision not to vacate the rule, the Association is pleased with the remand on the technical issues. NACWA will work with its member utilities, EPA, and its new Administrator, Gina McCarthy, to move forward with the remand process as expeditiously as possible and to achieve a rule that is scientifically based, technically sound, and will not impose unnecessary costs on utilities and their local ratepayers at a time when they are already struggling to meet existing regulatory and financial obligations.

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 .

EPA Proposes NPDES Electronic Reporting Rule

EPA’s proposed rule  to require electronic reporting under the National Pollutant Discharge Elimination System (NPDES) permit program was published in the Federal Register on July 30. 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, combined and sanitary sewer overflow event reports, and stormwater discharge information where applicable, to EPA or to their authorized NPDES state.

NACWA plans to submit comments on the proposed rule by the October 28 deadline and would like input from the membership on the rule’s potential impacts and any concerns regarding electronic reporting. Additional information on EPA’s proposal can be found in Advocacy Alert 13-12, including details for a webinar on the rule for the clean water community, which will be convened by NACWA and EPA, along with the Water Environment Federation (WEF) and the National Rural Water Association (NRWA), on September 4 from 2:00-4:00pm (Eastern).

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

Air Quality

EPA Extends Deadline for Siloxane Negotiations

EPA has extended the enforceable consent agreement (ECA) negotiation period to October 23. The negotiations began in June 2013 and were originally scheduled to end in December 2013. NACWA is an interested party in the negotiations, since publicly owned treatment works (POTWs) that use biogas as a renewable fuel source often experience detrimental effects of siloxanes on the exhaust stages of boilers, engines, and other equipment when biogas is used as a renewable fuel.
After multiple deadline extensions, EPA and the Silicone Environmental Health and Safety Council of North America (SEHSC) are nearing an agreement for environmental monitoring of the siloxane D4. The monitoring will include 10 POTWs, half of which will have an industrial discharger that manufactures or processes D4. The other five POTWs will have 90 percent or more domestic influent. NACWA is working with SEHSC to identify appropriate POTWs for the sampling program. NACWA will review the draft ECA when it is finished and provide input during the 30-day review and comment period.

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 and Energy

Hurricane Sandy Rebuilding Task Force Releases Policy Recommendations

President Obama’s Hurricane Sandy Rebuilding Task Force released a strategy document  on August 19 proposing 69 policy recommendations to help communities recover from the impacts of Hurricane Sandy and become more resilient in the event of future extreme weather. Chaired by Housing and Urban Development Secretary Shaun Donovan, the Task Force was created by President Obama in December 2012 to develop strategies for rebuilding areas damaged by the devastating Hurricane.

The policy recommendations focus on ensuring regionally coordinated approaches to infrastructure investment, promoting resilient rebuilding, revitalizing local economies, and building the capacity of local governments to plan for long-term solutions to increase resiliency to future disasters. The Rebuilding Strategy also discusses the need to integrate and consider green infrastructure approaches in the designs of recovery and resiliency projects. It recommends improving access to Federal tools, such as the Sandy Supplemental funding, specifically for communities interested in pursuing green infrastructure solutions. An overview of the report can be found here.

NACWA, Member Agencies Participate in Johnson Foundation Meeting on Water and Electric Utility Collaboration

NACWA and several of its member agencies participated in an August 21-23 meeting convened by The Johnson Foundation in Racine, Wisconsin on Building Resilient Utilities: How Can Water and Electric Utilities Co-Create their Future? The purpose of the meeting was to initiate a dialogue about how to cultivate greater collaboration between wastewater, drinking water, and electric power utilities to find mutually beneficial solutions. As water sector utilities look to decrease electricity use, wastewater utilities to increase their energy production, and electric utilities to decrease their water usage, these efforts are too often being implemented independent of one another. Participants in the meeting discussed the opportunities for cross-sector collaboration and identified the hurdles that must be overcome to facilitate this collaboration. The Water Resources Utility of the Future initiative of NACWA, the Water Environment Federation (WEF), and the Water Environment Research Foundation (WERF) was a reference point for discussions at the meeting.

NACWA member participants included the East Bay Municipal Utility District, DC Water, the City of Vancouver, Camden County Municipal Utilities Authority, and the Austin Water Utility. A report generated from the meeting will discuss strategies, incentives, and potential actions that could advance cross-sector collaboration and improve water and energy efficiencies.

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

Deadline Extended for Appealing Biogenic Emissions Deferral Decision

The U.S. Court of Appeals for the District of Columbia has extended the deadline for appealing the court’s July decision to vacate EPA’s three-year deferral of biogenic greenhouse gas (GHG) emissions from Clean Air Act regulation (see July 19 Clean Water Current article for more information). The extended deadline was set to purposefully fall 30 days after the U.S. Supreme Court decides whether it will hear lawsuits that challenge EPA’s GHG regulations and permitting programs. The environmental groups that challenged the biogenic emissions deferral opposed the extension.

The extension will allow EPA and industry groups affected by the Court’s decision to vacate of the deferral to try to find a solution that allows a continued deferral of biogenic GHG emissions from the Title V and Prevention of Significant Deterioration (PSD) permitting programs while EPA works on a permanent exemption for these emissions. NACWA is participating in these discussions through its membership in the Biogenic CO2 Coalition and will also be talking with EPA about specific impacts of any decisions on wastewater utilities.

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

Water Sector Climate Change Adaptation Webinars with EPA and Climate Alliance

EPA's Climate Ready Water Utilities (CRWU) initiative and the Water Utility Climate Alliance (WUCA) will launch a new webinar series beginning in the fall. The webinars will explore planning and decision-making strategies to help drinking water, wastewater, and stormwater utilities understand and adapt to the impacts of climate change.

The webinars will assist the water sector in developing a better understanding of climate change and how to manage impacts and create adaptation strategies. Each webinar will include presentations from utility representatives that have used these planning methods to help make critical decisions. Throughout the series, information will also be provided on available tools and resources to facilitate the planning processes. The webinar topics include Sustainability and Adaptation, Scenario Planning, Robust Planning, and Threshold Analysis. More topics may be added to the calendar throughout the year.

To register, view the “Training” tab at www.epa.gov/climatereadyutilities and register soon because space is limited. The series begins on Wednesday, September 18 at 1:00 pm EST and will continue through the spring of 2014. Please contact EPA at This e-mail address is being protected from spambots. You need JavaScript enabled to view it for additional information regarding CRWU initiative tools, resources, or webinars.

Integrated Planning/Financial Capability

EPA Plans New Financial Capability Framework to Outline Available Flexibility

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, and an upcoming EPA policy statement on financial capability. While EPA stood firm that it will not revise its 1997 financial capability guidance – or move away from its matrix calculations as a baseline for negotiations – the Agency acknowledged that there is a need for clearer direction on the extent to which utilities can supplement, or potentially deviate from, the guidance. The Agency is working on a Financial Capability Framework to further outline the flexibility it believes is available to utilities. The Framework is anticipated to provide additional information on, and justification for, what is affordable. It will also serve as a complement to the Agency’s Integrated Planning Framework. EPA expects to have a draft of the Framework in early September and plans to share it with NACWA at that time. EPA will also be discussing the draft Financial Capability Framework with the U.S. Conference of Mayors at an October meeting and hopes to issue it in final form by the end of the year.

During the meeting, EPA indicated that the cash flow forecasting approach laid out in NACWA’s most recent paper will be included in the new Framework as one of the options available to utilities. The Framework is anticipated to rely on the 1997 guidance as the foundation for federal government negotiations; however, EPA acknowledged that many existing consent decrees are based on assessments like cash-flow forecasting, not the 1997 matrix. Examples of where this has been done successfully may be included in the Framework to highlight the flexibility EPA intends to provide. It is hoped that this new Framework will demonstrate that when communities have the knowledge and willingness to offer an alternative approach, they have been, and can continue to be, successful.

NACWA made the point that the flexibility EPA believes is already in its guidance is not really acknowledged ‘out in the trenches’ during real negotiations. The Agency is optimistic that this new Framework, which will be sent to Regional Administrators as a memo from the Office of Water and Office of Enforcement & Compliance Assurance, 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 This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Security and Emergency Preparedness

Cybersecurity, Emergency Responder Access Discussed by Water Sector Coordinating Council

The Water Sector Coordinating Council (WSCC) discussed security and emergency preparedness for wastewater and drinking water utilities during an August 20-21 meeting. On the second day of the meeting, the WSCC was joined by the Government Coordinating Council (GCC), which includes representatives from EPA and the Department of Homeland Security (DHS). NACWA’s representatives to the WSCC, Patty Cleveland, Assistant Regional Manager with the Trinity River Authority, Texas, and a NACWA Board member and Vice Chair of the WSCC, and Jim Davidson, Manager of Safety & Security with the Northeast Ohio Regional Sewer District, Ohio, both participated in the meeting.

The work on cybersecurity for the nation’s critical infrastructure, which was set in motion by the February 12 Executive Order (EO) and Presidential Policy Directive 21 (PPD-21), was a major focus of the meeting. The overall security framework for infrastructure, the National Infrastructure Protection Plan (NIPP), is being rewritten as part of the EO and PPD-21, and the WSCC heard DHS’s plans for incorporating comments, such as those recently submitted by the WSCC, in the next draft of the NIPP. The WSCC also heard about the scope of cybersecurity threats and will be working with EPA and DHS to disseminate appropriate information to utilities.

An ongoing problem encountered by water sector utilities 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 Emergency Services Sector Coordinating Council (ESSCC) has developed an emergency responder access program that has proven useful in the Gulf Coast states. The WSCC will be working with the ESSCC to ensure that the program is more widely adopted and used by water sector utilities. NACWA will provide more information to members about this program as it develops.

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

Feds Agree to Pay in Settlement of Stormwater Fee Dispute

A settlement requiring payment of disputed stormwater fees was reached in a legal battle between the federal government and NACWA member DeKalb County, Georgia, resulting in an important victory for the municipality and the Association. The parties indicated, in a court document filed August 13, that they had agreed to a settlement and that the pending lawsuit would be dismissed upon payment of outstanding fees to the County.

Although the U.S. Department of Justice (DOJ) received a positive ruling  from the U.S. Court of Federal Claims in January 2013 finding that the federal facilities in question did not have to pay the disputed fees, DOJ was not confident in its ability to defend the lower court decision on appeal. Accordingly, the federal government chose to settle the case and pay a substantial portion of the fees in question.

This settlement agreement significantly weakens the impact of the underlying claims court decision, including the court’s finding that the charges in question were taxes instead of fees – and the court’s conclusion that the federal government was not financially responsible for the pre-2011 amounts. NACWA, which filed a brief  in support of the County before the claims court, believes the precedential value of the claims court ruling has been greatly diminished as a result of this settlement and is pleased with the outcome. The Association will distribute a copy of the settlement agreement to the membership when it is available.

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 .

Wet Weather/Consent Decrees

NACWA Defends Miami-Dade County Proposed Consent Decree

NACWA submitted a comment letter  on August 9 in support of a proposed municipal wet weather consent decree negotiated with federal and state officials by Association member Miami-Dade County. In the letter, NACWA encouraged approval of the proposal, as written, and opposed unwarranted changes suggested by environmental activist groups. The Association’s comments highlighted the complexity involved in negotiating wet weather decrees and reinforced the importance of federal courts deferring to the expertise of the parties that negotiate these agreements when reviewing proposed decrees.

The proposed Miami-Dade decree establishes a framework to maximize public health and environmental benefits, and achieve compliance with the Clean Water Act (CWA), without requiring unnecessary expenditures of limited local ratepayer dollars. A number of local environmental stakeholder groups have, however, intervened in the related judicial proceedings and argued that the proposed decree should be revised to deal more directly with climate change factors. NACWA’s comments acknowledge that potential climate change impacts can be important considerations for utilities in long-range planning, but also fully support the decision of EPA, the Department of Justice (DOJ), and Miami-Dade County that such considerations are not required to ensure CWA compliance – and that the proposed decree is not the appropriate tool to address climate change.

The comments further note that Miami-Dade has already taken significant steps to plan for the impacts of climate change, entering the Southeast Florida Regional Climate Change Compact with a number of surrounding counties in 2009. The Compact partners work together to mitigate the causes and adapt to the consequences of climate change, including the potential for sea level rise and the resulting impacts on water and wastewater service. Given the evolving scientific understanding of climate change, and the need to adapt quickly to changing circumstances, the County’s plan to address climate issues through the Compact (and other adaptive approaches) is much more practical and effective than using a more rigid federal wet weather consent decree and court order. No other federal consent decree has been altered by a District Court over the objections of the parties that negotiated it to include climate change considerations, and NACWA does not believe this decree should be the first.

NACWA is always willing to provide comments on proposed decree or other enforcement orders for Association members when such action would be helpful and appropriate.

Contact: Amanda Waters at 202/530-2758or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .