» Update Archive

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

Top Stories

Government Shuts Down; Federal Agencies Closed Until Congress Passes Spending Bill

Congress failed to agree on a Continuing Resolution (CR) to keep the federal government funded, forcing a shutdown on October 1. The government will remain shut until a compromise can be reached. Only “essential” federal employees are permitted to operate which includes only six percent of the Environmental Protection Agency’s workforce, according to its shutdown plan. To the extent this shutdown extends beyond this week, a number of NACWA events and efforts could be impacted. NACWA is closely monitoring the situation and will continue to provide updates as negotiations to pass a spending bill continue.

NACWA Helps Secure Legal Victory in Chesapeake Bay TMDL Litigation

A federal district court issued a resounding legal victory  on September 13 in litigation over EPA’s final total maximum daily load (TMDL) for the Chesapeake Bay, 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. A more detailed analysis of the decision can be found in Advocacy Alert 13-14.

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 .

NACWA Working to Reduce Burden of Wipes in Sewer Systems

NACWA has been working with INDA (the Association of the Nonwoven Fabrics Industry), the Water Environment Federation (WEF), and the American Public Works Association (APWA) to find viable solutions to the problems being caused by non-flushable wipes in sewer systems all across the country. Wipes and other products are commonly flushed but often do not disperse rapidly in the sewer system, causing expensive repair and maintenance problems for many sewer systems. In a joint September 17 press release with INDA, WEF, and APWA, NACWA took an important step in announcing a collaborative effort to address problems associated with wipes in the sewer system. This priority issue for NACWA has generated significant press attention, including articles in USA Today, MSN Money and on the front page of the Washington Post.

Following the joint press release, news outlets across the country picked up an article by the Associated Press (AP) discussing non-flushable wipes, and citing NACWA and the problems its members have been experiencing. The AP article has been featured on ABC, NBC, National Public Radio, Washington Post, FOX, Huffington Post and CBS, among others, and on over 75 local news outlets. Additionally, a number of local TV stations have covered the issue including in New York, NY, Philadelphia, PA, Baltimore, MD, Casper, WY and Roanoke, VA. A complete archive of media coverage can be found on NACWA’s website.

The four associations will participate in an October 9 session at WEFTEC13, “Wipe Out: Reducing the Burden of Wipes in the Pipes,” from 1:30-5:00 pm in Room S406b, McCormick Place, in Chicago, Illinois. Later this year, the associations will form a working group to try to find consensus on the technical issues related to the definition of flushability and test procedures to confirm flushability.

Moving forward, NACWA plans to build on this momentum through advocacy efforts on non-flushable wipes and other product stewardship-related issues, with public agency members making it clear that this is a top priority for their agencies and the Association. Later this year, NACWA, INDA, WEF, and APWA will form a working group to try to find consensus on the scientific/technical issues related to the definition of flushability and test procedures to confirm flushability. In addition to these collaborative efforts, NACWA continues to explore and consider other regulatory, legislative, and legal approaches to help keep non-dispersible and other damaging products out of the sewer systems. An upcoming Advocacy Alert will detail the work by NACWA to date and the steps that the Association will be taking in the future. More information on issues with non-flushables and NACWA’s efforts are available at www.nacwa.org/flushables.

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

EPA, Water Associations Meet to Discuss Climate and Resiliency

EPA and water association staff met on September 9 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 update 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.

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 Participates in Federal Agency Outreach Meeting on President Obama’s Climate Action Plan

NACWA attended a meeting on September 25 with other associations representing state and local governments to learn how federal agencies are implementing President Obama's Climate Action Plan. EPA organized the meeting, and the Department of Energy (DOE), the Department of Health and Human Services (HHS), the Department of Transportation (DOT), the National Oceanic and Atmospheric Administration (NOAA), and the Federal Emergency Management Administration (FEMA) all provided information on their responsibilities and planned actions under the Climate Action Plan. EPA and FEMA are working on plans to make communities more resilient to extreme weather and other climate impacts, and FEMA is evaluating lessons learned from hurricane Sandy and how to systematically incorporate these lessons into their programs. The associations attending the meeting recommended that the federal agencies consolidate their climate information and tools to make them easier to access for states and local communities.

DOE expressed in interested in learning more about the barriers to renewable energy production, including at wastewater treatment utilities. NACWA will be meeting with DOE later this fall to discuss results of a Water Environment Research Foundation (WERF) project to quantify the energy production potential at clean water agencies as part of the Water Resources Utility of the Future (UOTF) initiative.

EPA/Regulatory Policy

NACWA Meets with EPA on Potential Areas for Collaboration, Environmental Justice Issues

NACWA met on September 10 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. Subsequent to the meeting, NACWA provided the agency with a list of several viable collaborative actions based on the discussion. A meeting between Administrator McCarthy and NACWA public agency leaders is also planned for the near future.

In a separate meeting on September 18, NACWA discussed the importance of including the municipal clean water perspective in the Agency’s environmental justice (EJ) initiatives with senior EPA staff. Among EPA staff in attendance were Lisa Garcia, Associate Assistant Administrator for Environmental Justice, and Matthew Tejada, Director of the Office of Environmental Justice. The discussion focused on ways to include community affordability concerns in EPA’s EJ considerations when pursuing Clean Water Act (CWA) enforcement and permitting actions.

NACWA has previously submitted comments  to EPA encouraging a more holistic look at affordability as part of the Agency’s EJ analysis, as well as expressing concern that many of the communities receiving extra attention for EJ consideration are also the ones that can least afford the increased costs associated with significant new CWA mandates. The EPA officials in attendance at this week’s meeting acknowledged NACWA’s concerns and expressed interest in exploring ways to more fully consider the municipal clean water community’s perspective within the EJ context. NACWA will be working with EPA on some short-term actions to further this discussion – including potential visits to NACWA member utilities – and looks forward to additional engagement with EPA on this issue moving forward.

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

State/Regional Associations, NACWA Discuss Stepped Up Collaboration

NACWA hosted a conference call this week with representatives from more than 15 state and regional clean water associations to discuss opportunities for collaboration on advocacy issues and the benefits of leveraging the groups’ capabilities for shared advocacy objectives. Key state and regional association partners with whom NACWA has long-standing relationships were on the call as were organizations less familiar with our national advocacy. Ultimately, the intent of the initiative is to best leverage our combined advocacy resources on key issues – while identifying what those priority issues are in various areas of the country.

The group was highly interested in establishing a broad-based coalition of the state/regional associations with NACWA to approach targeted clean water issues in Washington, DC with a united voice, while also sharing information and supporting regional advocacy goals wherever possible. If you are involved with a regional group that would be interested in joining this coalition, please contact Brenna Mannion.

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

Integrated Planning/Financial Capability

NACWA Co-Hosts Workshop on Integrated Planning in Region 1

Over 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 was the fifth in a series of IP workshops NACWA has 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, and 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 a 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 its members to plan workshops in the remaining regions. The next workshop is scheduled for November 13 in Albany, New York. Information on upcoming workshops will be made available as they are scheduled 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

Pretreatment & Pollution Prevention

NACWA Recommends Changes to Steam Electric Power Effluent Guidelines

NACWA sent comments  to EPA regarding the Agency’s proposed effluent limitation guidelines (ELG) for steam electric power generating point sources. EPA last updated the steam electric power ELG in 1982 and is obligated through a settlement agreement to finalize the ELG rulemaking by May 2014. NACWA’s comments recommended allowing the publicly owned treatment works (POTWs) to determine the copper and iron standards for steam electric power generating facilities that discharge to sewer systems. EPA proposed an exemption from new standards for nonchemical cleaning wastes that are currently authorized for existing facilities. Through the pretreatment program, however, POTWs serve as the control authority for these facilities and “understands the facility’s permit and the necessary discharge limits to protect the POTW and its receiving waters,” as stated in NACWA’s comments.

NACWA also recommended that EPA stop using the outdated 1982 50 POTW study as the basis for removal efficiencies at POTWs. The data in this study are over 30 years old, and the removal efficiencies are no longer valid. Treatment technologies at most POTWs have improved since the Study was completed, and pretreatment programs have significantly reduced concentrations of pollutants, which impact treatment plant removal efficiency values. NACWA will continue to work with EPA to reduce the reliance of the Agency and state regulatory authorities on this outdated data.

Stormwater

Settlement Agreement Released in Stormwater Fee Case

On September 12, NACWA 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.

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 .

Water Quality

NACWA to Comment on Proposed Water Quality Standards Rule Revisions

NACWA’s Water Quality Committee is reviewing a proposed rule  published on September 4 outlining a number of potential revisions to EPA’s water quality standards regulations. These regulations directly impact states and how they establish and implement their water quality standards programs, but many of the proposed changes could have an impact on NACWA members. The proposed rule contained few if any surprises, with EPA addressing the six issues that were anticipated: 1) what constitutes an administrator’s determination that new or revised standards are necessary; 2) designated uses – including clarifying that states must adopt the highest attainable use; 3) clarification that states must re-examine their water quality criteria during each triennial review to determine if any revisions are necessary in light of new EPA recommended criteria; 4) several revisions regarding antidegradation implementation; 5) new regulatory language recognizing variances as an important tool and outlining some basic parameters for their use; and, 6) new provisions on the use of permit-based compliance schedules.

NACWA participated in a September 24 public webinar on the rule and will attend an October 23 public meeting where EPA will provide additional detail on the proposal. Some of the proposed regulatory changes, according to EPA, are already being implemented as EPA policy, so their impact in particular states may vary. The antidegradation provisions may be particularly problematic and NACWA will be focusing additional attention on this section of the rule. EPA hopes the new provisions will ensure more consistent implementation of antidegradation provisions nationwide, but new provisions for Agency approval of state implementation procedures could reduce existing flexibility. For variances, while EPA’s acknowledgement of their underutilization is a positive development, the added specificity and requirements in the regulations could lead to a decrease in flexibility.

EPA is accepting comments on the proposal until December 3. Please send any comments to Chris Hornback.

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

Court Rules EPA Must Make Determination on Federal Nutrient Criteria in Mississippi River Nutrients Case

The U.S. District Court for the Eastern District of Louisiana ruled  September 20 that EPA is required under the Clean Water Act (CWA) to make a determination within 180 days on whether federal numeric nutrient criteria (NNC) are necessary for the Mississippi River Basin (MRB) and Gulf of Mexico. The court affirmed, however, EPA’s discretion to consider a wide variety of factors in making such determination. The Gulf Restoration Network, et al. v. EPA case arose from a challenge by environmental organizations to EPA’s 2011 denial of their 2008 petition to establish federal NNC and nutrient total maximum daily loads (TMDLs) for all waters nationwide where such criteria have not been developed or in the alternative, at a minimum, to establish such criteria and TMDLs for all waters in the MRB and Gulf of Mexico. NACWA requested and was granted intervention in the case in late May 2012 and filed briefs in 2013.

The court found that “EPA could not simply decline to make a necessity determination in response to Plaintiffs’ petition for rulemaking” but was required to make a clear “yes” or “no” decision. However, in an important positive development for NACWA and its utility members, the court expressly rejected arguments that EPA cannot rely on non-scientific factors when making a necessity determination. This provides an opportunity for EPA to make a decision that there is no need for federal NNC – thus meeting the court’s directive to make a formal necessity determination – using many of the same factors from its 2011 petition denial. NACWA will continue advocating strongly with EPA in support of this outcome. Another aspect of the ruling that is helpful for NACWA members is the court’s clear affirmation that states have primary responsibility under the CWA for developing water quality standards, which echoes NACWA’s longstanding position that was expressed in this case through briefing. NACWA will monitor further developments in the litigation, including any potential appeal by EPA. More information on the decision can be found in Advocacy Alert 13-15, and additional details on the overall litigation can be found on NACWA’s Litigation Tracking page.

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

EPA Sends Draft Clean Water Act Jurisdiction Rule to OMB; Key Connectivity Report Released

EPA announced on September 10 that it will abandon its pursuit of guidance and instead pursue a formal rulemaking process to clarify the jurisdiction of the Clean Water Act (CWA). The Agency, along with the U.S. Army Corps of Engineers, sent a draft rule to the White House Office of Management (OMB) for review on the same day as their announcement. NACWA issued a press release applauding EPA’s decision and, in line with its long-standing position, emphasized that the important issues of CWA jurisdiction deserve the full attention of the rulemaking process.

Also on September 10, EPA’s Science Advisory Board (SAB) released a draft study  examining the connectivity between streams and wetlands to larger, downstream waters. The SAB study is meant to bolster EPA and the Corps’ draft rulemaking, and portions of the draft rule submitted to OMB directly incorporate information reflected in the scientific study. EPA is accepting comments on the study until October 31. The study will be considered by the SAB review panel during its public peer review meeting later this year.

NACWA is pleased to see EPA’s decision to pursue a full-fledged rulemaking, which will afford NACWA and interested members the opportunity to weigh in on the issue. The Association will keep members updated on the new study, the rulemaking process, and additional opportunities to comment on these initiatives as they develop.

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 .