» Clean Water Current Archive

September 13, 2013

NACWA Helps Secure Legal Victory in Chesapeake Bay TMDL Litigation

A federal district court issued a resounding legal victory  today in litigation over EPA’s final total maximum daily load (TMDL), embracing arguments made by NACWA and others to affirm the TMDL and its holistic watershed approach requiring pollution reduction from all sources of impairment, including nonpoint sources. The court’s ruling in American Farm Bureau v. EPA rejects all challenges to the TMDL made by the agricultural plaintiffs in the case, and grants requests by EPA and a group of municipal intervenors, including NACWA, to uphold the final TMDL and its watershed approach for achieving nutrient and sediment reductions. In making its decision, the court noted that it “endorses the holistic, watershed approach used” in the TMDL, finding the approach to be “consistent with the Clean Water Act (CWA), and practical in terms of attaining a full and fair contribution by all major source sectors.”

This decision marks a significant win for NACWA, its members, and its municipal partners in the litigation by affirming EPA’s ability to pursue a watershed approach – including a meaningful contribution from nonpoint agricultural sources – in crafting TMDLs to achieve improved water quality. NACWA, the Maryland Association of Municipal Wastewater Agencies (MAMWA), and the Virginia Association of Municipal Wastewater Agencies (VAMWA) jointly intervened as defendants in the litigation in October 2011 to represent the municipal clean water community and to ensure that EPA’s ability to address nonpoint sources and administer a holistic watershed approach through the TMDL program was upheld. NACWA is very pleased with the court’s ruling, and appreciates the opportunity to work with MAMWA and VAMWA in achieving this outcome. The Association will distribute a more detailed analysis of the decision to its members early next week.

Water Sector Represented at Senate Roundtable on Climate Impacts

The impact of climate change on local economies and infrastructure was a prominent focus for NACWA this week. Ken Kirk, NACWA’s Executive Director, shared the views of the clean water sector on the economic impacts of climate change for communities in a roundtable discussion on Wednesday hosted by the Democratic Senate Steering & Outreach Committee. Kirk emphasized how important this issue is to NACWA members and the water sector’s commitment to ensuring our utilities are resilient and can withstand extreme weather conditions brought on by a changing climate. He also discussed the 2009 report  by NACWA and the Association of Metropolitan Water Agencies (AMWA) that provided an estimate of the costs faced by utilities to become more resilient – up to nearly one trillion by mid-century. The roundtable was chaired by Senator Mark Begich (D-AK) and attended by key Senate lawmakers, including Senate Majority Leader Harry Reid (D-Nev.), Senate Environment & Public Works Committee Chairwoman Barbara Boxer (D-Cal.) and Senator Ben Cardin (D-MD) who chairs the Senate Subcommittee on Water & Wildlife. Twelve additional Senators joined the roundtable and engaged in the discussion – demonstrating the clear priority of this issue for the Democratic caucus. Senators Reid, Boxer and Cardin are expected to introduce a legislative package supported by NACWA and AMWA that would authorize federal assistance to help communities pay for the costs associated with becoming more resilient. The Water Infrastructure Resiliency & Sustainability Act  was introduced earlier this year in the House by Congresswoman Lois Capps (D-Cal.). As the Senate considers measures to address and better adapt to climate change, NACWA will be working to ensure the wastewater sector is fully engaged.

EPA, Water Associations Meet to Discuss Climate and Resiliency

EPA and water association staff met this week to discuss current work related to climate and resiliency issues for drinking water and wastewater utilities. NACWA participated in the meeting, along with the Water Environment Federation (WEF), the Association of Metropolitan Water Agencies (AMWA), and the American Water Works Association (AWWA). EPA provided updates on the tools and resources under development, including an updates to the Climate Ready Water Utilities Toolbox and Climate Resilience Evaluation & Awareness Tool (CREAT) 2.0, as well as a workshop planner for utilities that will provide practice in decision-making during extreme weather events. EPA is also offering a series of webinars covering topics such as sustainability and adaptation, scenario planning, and robust planning and threshold analyses. Registration for these webinars is available under the ‘Training Calendar’ tab at www.epa.gov/climatereadyutilities. When updating climate and resiliency tools, EPA will be asking for utility input and volunteers for pilot tests. NACWA will keep members informed about these opportunities as they arise.

NACWA-EPA Collaboration the Focus of High Level Meeting

NACWA met this week with Arvin Ganesan, EPA Administrator McCarthy’s Deputy Chief of Staff and Ken Kopocis, Senior Advisor in the Office of Water. The discussion focused on potential areas for collaboration between the Agency and NACWA. Receiving the most attention were integrated planning and affordability, as well as the Water Resources Utility of the Future (UOTF) initiative – with a particular focus on climate and resiliency issues. NACWA will provide the Agency with a listing of viable collaborative actions reflecting the discussion. A future meeting between Administrator McCarthy and NACWA public agency leaders is also planned for the near future.

Settlement Agreement Released in Stormwater Fee Case

NACWA this week received a copy of the settlement agreement  in a closely watched case over the federal payment of disputed municipal stormwater fees. As previously reported in the August 23 Clean Water Current, NACWA member DeKalb County, Georgia reached an agreement with the federal government in the dispute, with the federal facilities in question agreeing to pay a majority of the outstanding stormwater charges. The settlement can also help to weaken the impact of an underlying federal claims court decision which found that the federal government was not responsible for the fees.

The settlement document memorializes the agreement between the parties in the case, including the payment of $150,000 by the U.S. Department of Justice (DOJ) to DeKalb County to settle the claim. The agreement also acknowledges DeKalb’s objection to the January 2013 U.S. Court of Federal Claims decision  in the case, specifically the court’s finding that 1) the stormwater charges in question were taxes and not utility fees, and 2) that a 2011 Clean Water Act Amendment clarifying federal responsibility for stormwater fees does not apply to pre-2011 charges. DOJ ultimately did not appear confident defending these two issues on appeal, and accordingly offered to settle the case instead.

NACWA filed a brief  in support of the county before the claims court and was disappointed with the January ruling. The Association is, however, pleased with the settlement agreement and believes it represents a clear acknowledgment by the federal government of the necessity to pay the fees in question. NACWA also believes the settlement agreement can be used by other utilities to help minimize the impact of the claims court decision in the future. Additional information on the litigation can be found on the Association’s Litigation Tracking webpage.

Senator Udall to Propose Key Amendment to Energy Efficiency Bill

Senator Tom Udall (D-NM) has plans to introduce an amendment that would strengthen links between water and energy consumption to The Energy Savings & Industrial Competitiveness Act, a bill to spur the use of energy efficiency technologies across the residential, commercial and industrial sectors. Udall’s amendment, well aligned with NACWA’s Water Resources Utility of the Future (UOTF) initiative, would establish a grant program for municipal water and wastewater utilities to demonstrate innovative technology-based solutions to increase water and energy efficiency. NACWA, along with nine other national associations, submitted this letter  to Senator Udall, thanking him for his effort on the amendment and encouraging the Senate to adopt the proposal when the Senate begins consideration of the Energy Savings & Industrial Competitiveness Act, which could be as early as this week.

House Introduces Water Resources Reform & Development Act

The House Transportation & Infrastructure Committee released its version of the Water Resources Development Act on Wednesday, the Water Resources Reform and Development Act (WRRDA). Introduced by Committee Chair Bill Shuster (R-PA), Ranking Member Nick Rahall (D-WV), Water Resources & Environment Subcommittee Chairman Bob Gibbs (R-OH), and Subcommittee Ranking Member Tim Bishop (D-NY), the bill would authorize $8 billion in new U.S. Army Corps of Engineers’ projects and $2 billion to modify existing projects. The Senate passed its version of the bill in May which included a $50 million Water Infrastructure Finance & Innovation Act (WIFIA) pilot program to provide financing for both flood control projects and regionally significant water and wastewater projects. The House version does not include the WIFIA program. WRRDA is expected to have an expedited legislative schedule, with Committee and House consideration likely in the next few weeks.

NACWA Co-Hosts Popular Workshop on Integrated Planning in Region 1

Approximately 75 stakeholders, including NACWA members, EPA Regional staff, and state regulators, met for the Region 1 Integrated Planning (IP) Workshop in Portsmouth, New Hampshire on September 9. The workshop was co-hosted by NACWA, the Association of Clean Water Administrators (ACWA), and the New England Interstate Water Pollution Control Commission (NEIWPCC), in collaboration with the Water Environment Federation (WEF). It is the fifth in a series of IP workshops NACWA, ACWA and WEF have hosted in conjunction with EPA, across the country. Utilities voiced their experiences with IP and participated in a spirited discussion with state regulators from Vermont, Rhode Island, New Hampshire, Maine, Massachusetts, Connecticut – as well as EPA staff. With two non-delegated states in Region 1, Regional staff had a prominent role in the workshop and expressed strong willingness to work with communities as they consider IP. Although most holistic approaches to water quality in the region – home to some of the oldest infrastructure in the country - have happened in the context of consent orders, there is strong evidence to indicate that there will be permits issued with IP components in the near future.

Much of the Workshop’s value was found in the unique opportunity for utility leaders to ask thoughtful questions to EPA Headquarters and Region 1 officials, as well as state regulators, on how IP may be applicable to their specific circumstances and situations. NACWA appreciates the many attendees who joined us, and will continue to work with ACWA, WEF, EPA, and our members to plan workshops in the remaining regions. A Region 2 workshop is scheduled to be held in Albany, New York on November 13. Information on upcoming workshops will be made available as they are scheduled on NACWA’s website.

National Perspective Provided at California Stormwater Conference

NACWA spoke at the California Stormwater Quality Association’s (CASQA) annual conference this week, delivering a national perspective on key stormwater developments. The conference is the largest gathering of stormwater utilities and professionals in California, providing a forum to discuss critical stormwater issues at both a state and regional level. The Association’s presentation focused on national legal and regulatory developments related to hydromodifcation and the effort to further reduce stormwater flow.

As part of this discussion, NACWA provided an update and analysis of EPA’s work on a national post-construction stormwater rule, the impact of recent Agency attempts to regulate stormwater flow and related legal developments, as well as the implications of environmental activist petitions to EPA requesting use of the Agency’s “residual designation authority” (RDA) to permit additional sources of stormwater runoff. The Association is engaged in active advocacy with EPA on all these issues, and continues to await additional information from the Agency on a timeline for promulgation of the stormwater rule and response to the RDA petitions. NACWA appreciated the opportunity to participate in this week’s conference and looks forward to additional collaboration with CASQA moving forward.

NACWA – Active & Engaged at WEFTEC13

NACWA, its leadership, and members will be have a prominent presence at WEFTEC13 – co-hosting sessions, engaging in focus groups, and providing invaluable information and perspectives from the municipal clean water community. The Association will again collaborate WEF to convene the Utility Leaders Morning on Tuesday, October 8. The morning’s events include the annual Hot Topics Breakfast from 8:00-9:45 am. EPA’s Acting Assistant Administrator for Water, Nancy Stoner; Jeff Lape, Deputy Director for the Office of Science & Technology; Deborah Nagle, Director of the Water Permits Division; and, Loren Denton, Acting Chief, Municipal Enforcement Branch will be on hand along with other key Agency staff to discuss issues including integrated planning, nutrients, and water quality standards, to name a few. The breakfast is an informal session and provides ample opportunity to ask questions of our colleagues from EPA. There is no fee for the breakfast, but we do ask that you register. A Utility Executives Forum, from 10:00 am-12:00 noon, follows the Hot Topics Breakfast and will feature Kimo Kippen, Chief Learning Officer, Hilton Worldwide. Kippen will keynote the Forum describing how Hilton Worldwide reinvented itself and how utilities can learn from this global organization.

Year-at-a-Glance Now Available

Every September, we end our fiscal year with a look back – what did we, collectively, accomplish? We are very pleased to offer a look back at the past year with NACWA’s Year-at-a-Glance featuring some significant achievements including: our work to prevent the inclusion of nutrient removal in secondary treatment requirements; implications and opportunities for the Water Resources Utility of the Future; integrated planning workshops in regions across the country; opportunities for more rational financial capability assessments; and leading the water sector in protecting the tax exempt status of municipal bonds. We invite you to take a look!

NACWA Blog of the Week:
Collaborating to Meet the Challenges Ahead

This week’s Water Voice post comes from NACWA’s Executive Director, Ken Kirk, and features EPA Administrator, Gina McCarthy’s, seven “themes” to guide the Agency’s priorities – with a focus on the need to collaborate with the municipal community on the Water Resources Utility of the Future initiative. What is Ken’s take? Read on and subscribe today!