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

Top Stories

Toilets Are Not Trash Cans! NACWA Declares War to Protect Your Pipes, Pumps, Plants, and Personnel

NACWA Executive Director, Ken Kirk, announced in an October 3 email to NACWA members that the Association is stepping up its efforts to protect the pipes, pumps, plants, and personnel at clean water agencies with a targeted initiative aimed at reducing harmful materials that are flushed or drained into the sewer system. These products include wipes, pharmaceuticals, paper towels, feminine hygiene products, dental floss, FOG (fats, oils, and greases), as well as product additives such as triclosan.

NACWA will focus on changing consumer behavior and will be working collaboratively with its members and other groups to explore and maximize all advocacy and related avenues, including public education and media outreach. Legislative, regulatory, and legal action may also need to be considered to reduce inappropriate product additives and ensure proper labeling of products. NACWA will also be working with industry and retailers to improve labeling and product stewardship.

Wipes and other non-dispersible products have received tremendous media attention recently, including a multitude of newspaper articles and local television spots featuring NACWA and its member utilities (see www.nacwa.org/flushables for media links and other information). The Association will continue to directly address this expensive problem, building on the work it has done over the past years with the Water Environment Federation (WEF), the American Public Works Association (APWA), and INDA (the association of the nonwoven fabrics industry) to improve flushability guidelines and product labeling with the “do not flush” logo as one strategy to keep these products out of the sewer system. NACWA, WEF, APWA, and INDA are planning to form a technical workgroup to reach consensus on definition of flushability and appropriate tests for confirming flushability of products. The NACWA Board will consider a Targeted Action Fund (TAF) request during its November 19 meeting to provide funds for a facilitator for this workgroup.

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 Meets with EPA Administrator, Agency to Focus on Water 

NACWA met at the end of October with EPA Administrator, Gina McCarthy, to discuss the top clean water priorities with a focus on areas where public utilities and EPA might collaborate. While the Administrator previously served as the Agency’s Assistant Administrator for the Office of Air & Radiation, she made it clear that – for the remaining three years of the current Administration – EPA will be increasingly devoted to water. NACWA’s Executive Director, Ken Kirk, and Managing Director of Government & Public Affairs, Adam Krantz, set out the Association’s forward–leaning agenda focused on the Water Resources Utility of the Future (UOTF), the need to advance EPA’s integrated planning and affordability frameworks, the importance of strengthening collaboration on green infrastructure, and the need to cooperate on climate/resiliency-related challenges.

NACWA and EPA agreed on the need to bring together municipal, state, federal, and industry leaders to explore the challenges that water and wastewater utilities face in a climate-driven world. The envisioned early 2014 Resiliency Summit would also develop viable approaches and solutions to these challenges. The Administrator acknowledged that she and her staff were aware that clean water agencies are challenged with more rules, regulations, and laws than could possibly be complied with – asserting that the Agency needs to continue to challenge itself to think more systematically about how the goal of sustainability should drive its decision-making. Administrator McCarthy emphasized that EPA will not be a bystander in implementing the integrated planning framework and upcoming affordability framework, and noted that utilities will not be on their own to simply come forward with integrated plans. The Administrator also noted that the time is now to ensure strong support from all stakeholders to implement green infrastructure programs. NACWA will provide updates on these collaborative efforts as they unfold.

Biosolids

Court Denies Activist Group’s Request for Partial Rehearing in SSI Litigation

The Sierra Club’s (SC) October 4 Request for Rehearing  with the D.C. Circuit, asking the court to reconsider a limited number of issues from its August 20 decision in the SSI case, was denied on October 24. The court issued a partial remand of the rule in August, agreeing with NACWA that the key technical elements of the rule were flawed and directing EPA to make changes to the final rule. See the August 23 Clean Water Current for more information on the court’s ruling.

SC sought rehearing on three specific issues: 1) EPA’s decision not to set any “beyond the floor” emission standards; 2) EPA’s decision to set some emission limits by using a multiple of the “representative method detection level” for certain pollutants; and 3) EPA’s decision to set floors for some pollutants based only on the available control technology without considering other factors. These three issues were previously raised by SC in its original challenge to the rule, and rejected by the court in its decision. SC’s request sought to have the court change its mind on these three issues and instead rule in their favor.

The D.C. Circuit’s prompt denial indicates the court saw no merit in Sierra Club’s request. The decision clears the way for EPA to move forward with its partial remand of the rule based on the court’s August decision. NACWA remains focused on developing an aggressive advocacy strategy to engage with EPA during the rule remand and ensure the Agency’s revisions to the rule result in more appropriate emission standards.

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

Facility and Collection Systems

EPA Will Not Appeal 8th Circuit Blending Ruling

EPA will not seek U.S. Supreme Court review of the March 25 decision in Iowa League of Cities v. EPA, which invalidated key elements of the Agency’s improper efforts to regulate blending and raised significant concerns about the Agency’s ongoing attempts to limit wet weather treatment options. NACWA has strongly opposed EPA’s position that it has legal authority to limit blending and other internal plant processes if all applicable effluent limits are being met at the final point of discharge. The March 25 decision marked an important legal victory for the municipal wastewater sector by providing much-needed and long overdue legal certainty and solidifying flexibility for utilities to safely and cost-effectively use blending to manage wet weather flows. NACWA is pleased that EPA will not further appeal the decision and hopes the Agency’s decision reflects an acknowledgement that imposing secondary treatment standards within the plant is illegal. The Association looks forward to meeting with EPA and other stakeholders to advocate for implementation of the ruling nationwide. An initial meeting with water sector stakeholders is scheduled for November 6. Additional details on the original ruling can be found in the March 29 Clean Water Current.

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 .

Integrated Planning/Financial Capability

EPA’s Draft Affordability Framework Discussed with Mayors, Other Stakeholders

NACWA met October 31 with representatives of the U.S. Conference of Mayors (USCM), the National League of Cities (NLC), the National Association of Counties (NACo), and a number of water sector organizations to discuss a new draft affordability framework EPA shared with the Mayors for comment and reaction. EPA describes the new framework as a bridge between the Agency’s 1997 affordability guidance and its June 2012 Integrated Planning Framework. The new framework emphasizes that the 1997 guidance will remain the foundation of EPA’s financial capability assessments, but provides additional clarity on the type of information utilities can submit to supplement the baseline assessment and the extent to which that information will be considered. NACWA’s initial impression was that the new framework, while providing additional clarity on the factors EPA will consider, did little to address the Association’s overall concerns with the underlying methodology. The Agency did include reference to cash flow modeling – an approach recommended in NACWA’s most recent white paper – but EPA underscores that this type of information was already considered ‘additional information’ that could be submitted by a utility. NACWA will be continuing to discuss the content of the framework with USCM, NACo, and NLC, and will be providing comments to EPA.

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

Cybersecurity Framework and National Infrastructure Protection Plan Released

The updated Draft Cybersecurity Framework was released October 24, outlining how cybersecurity risk can be managed by critical infrastructure owners and operators. The Framework was developed as directed in Executive Order 13636 (EO), “Improving Critical Infrastructure Cybersecurity,” and the associated Presidential Policy Directive 21 (PPD-21). NACWA submitted comments in April providing recommendations for the development of the Framework. The Association and its Security & Emergency Preparedness Committee are currently reviewing the draft Framework, and NACWA is also working with the Water Sector Coordinating Council (WSCC) to review the document. A request for comments was published in the October 29 Federal Register, and the deadline for submitting comments is December 13. NACWA will likely submit comments in coordination with the WSCC.

The WSCC has also received a final draft of the National Infrastructure Protection Plan (NIPP) rewrite, which was also mandated by the cybersecurity EO and PPD-21. The updated NIPP integrates cybersecurity with physical security of the nation’s critical infrastructure. The WSCC submitted comments on an early draft of the NIPP and will review the final draft before it is delivered to the White House on November 8. NACWA’s representatives to the WSCC – Patty Cleveland, Assistant Regional Manager, Northern Region, of the Trinity River Authority, Texas, and Jim Davidson, Manager of Safety & Security with the Northeast Ohio Regional Sewer District, OH – are both participating in this review.

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

Green Infrastructure Summit Brings Leaders Together; EPA Announces New Strategy

Onondaga County and EPA held the Community Summit on Green Infrastructure in Syracuse, NY, October 21-22, convening EPA’s Green Infrastructure Partner communities and others who are pioneering the large-scale implementation of green infrastructure (GI). Implementation opportunities, obstacles, and lessons learned were discussed through a series of roundtable dialogues facilitated by staff from the Environmental Finance Center (EFC). Officials from EPA Region 2 and the Agency’s Office of Water, including Acting Administrator for Water, Nancy Stoner, participated in both days of the Summit. Approximately 30 communities, including over a dozen NACWA members, sent representatives highlighting their commitment to GI.

Over the course of two days, the communities’ dialogue included successes in financing, partnerships, standardization of design, and public education on GI. Although many programs are experiencing real, tangible progress, the communities acknowledged the obstacles they continue to face with public perception, maintenance, research, and funding. At the conclusion of the Summit, communities posed a number of “asks” to EPA, requesting that the Agency provide specific resources, research, and data centralization, in order to improve community implementation and foster the growth of their GI programs. A link to the Summit website can be found on NACWA’s GI issue page, along with follow-up materials.

EPA Deputy Administrator, Bob Perciasepe, held a press conference during the Summit to announce the Agency’s new GI Strategic Agenda . The strategy builds on previous versions issued in 2008 and 2011 respectively, with a focus on federal coordination, regulatory support, information exchange, financing, and capacity building. NACWA, along with the other national organizations that originally signed the 2007 GI Statement of Intent  (SOI), convened with EPA’s Office of Water for a meeting last week to re-evaluate and build upon the original SOI and determine how the national organizations can continue to foster GI implementation. Considering feedback from the Summit and the GI Partners’ meeting, NACWA is taking the lead to develop a GI strategy for the Partners’ collaboration; while also exploring a possible GI event to coincide with WEF, NACWA, and WERF’s combined National Water Policy Forum & Fly-In in the spring: Water Week.

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

Water Quality

NACWA Voices Concerns over Nutrient Training for Permit Writers

NACWA raised significant concerns in a letter last month to EPA over the content of training materials used to instruct Clean Water Act permit writers on evaluating the need for, and establishing, numeric nutrient permit limits for clean water utilities. The September 30 letter  expressed concern that EPA has abandoned its efforts to develop more formal guidance in favor of conducting training. The letter set out several general issues but also enumerated specific concerns with the presentation material that was used during a July 2013 training session for permit writers, which the Agency hopes will serve as a model for future workshops. EPA has expressed a willingness to discuss this issue and NACWA is working to set up a meeting in the coming weeks.

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 Seeks EPA Decision on Path Forward for Dental Amalgam Separator Rule

In comments  on EPA’s Preliminary 2012 Effluent Guidelines Program Plan (ELG Plan), NACWA asked the Agency to either drop the drafted dental amalgam separator rule from consideration, or formally submit the rule to the White House’s Office of Management & Budget (OMB). EPA originally announced a schedule of October 2011 for the proposed rule and October 2012 for the final rule, but listed the rule with a “TBD (to be determined)” schedule in the Preliminary 2012 ELG Plan for both the proposed and final rule. The Agency has communicated to NACWA and to other stakeholders that the proposed rule has already been drafted, but that the draft has raised some concerns during informal interagency review with OMB. Although EPA continues to state that it plans to propose the rule, there have been no signs that the Agency is moving forward.

Because of this uncertainty about whether the rule will be proposed, development of local amalgam separator programs has stalled. Publicly owned treatment works (POTWs) do not want to establish local programs only to then be required to change these programs in line with a new federal rule, wasting resources for both the utilities and dentists. NACWA believes that dental amalgam separator programs are best developed on a local level when needed to protect water quality. The Association provided examples of existing amalgam separator programs – both voluntary and mandatory – that have successfully reduced mercury discharged to POTWs. NACWA also provided examples of POTWs that do not experience elevated mercury levels in their influent, and would achieve greater environmental benefits by using their resources on other issues. The Association will continue to work with EPA to resolve this situation and provide certainty for utilities regarding dental amalgam separator programs.

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

Appeal Filed in Chesapeake Bay TMDL Litigation

The American Farm Bureau filed a notice of appeal  in the Third Circuit Court of Appeals on October 7 to the September 13 federal district court ruling in American Farm Bureau v. EPA - the Chesapeake Bay total maximum daily load (TMDL) litigation. The lower court’s ruling rejected all challenges to the TMDL made by the agricultural plaintiffs in the case, and granted requests by EPA and a group of municipal intervenors, including NACWA, to uphold the final TMDL and its holistic watershed approach that requires pollution reduction from all sources of impairment to achieve nutrient and sediment reductions.

This decision marked a significant win for NACWA, the Maryland Association of Municipal Wastewater Agencies (MAMWA), and the Virginia Association of Municipal Wastewater Agencies (VAMWA) – all of whom jointly intervened as defendants in the litigation in October 2011 to represent the municipal clean water community. NACWA will seek to actively help defend and uphold the lower court ruling on appeal. 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 .

Key Dialogue Focuses on Nutrient Management

Representatives from several NACWA member agencies, including Barbara Biggs, Chair of NACWA’s Water Quality Committee and Government Affairs Officer for the Metro Wastewater Reclamation District in Denver, Colorado, along with Association staff, participated in a October 28-29 dialogue convened by the Water Environment Federation (WEF), the Environmental Defense Fund (EDF), and the Johnson Foundation to explore development of a framework for smarter nutrient management. Using its Energy Roadmap as a model, WEF initially convened a February 2013 meeting with EDF and the Johnson Foundation to explore development of a nutrient roadmap.

The intent of the initiative, as further outlined in the dialogue held this week, is to provide utilities with information on nutrient removal and recovery technology – ranging from basic, low-cost alternatives to cutting edge treatment processes – and how and when these technologies may be best deployed at a particular utility. The final product is intended to help utilities better meet regulatory objectives, while reducing energy consumption and chemical use and increasing resource recovery. It was clear from the discussions that the term ‘roadmap’ might send the wrong message, implying a more prescriptive, one-size-fits-all pathway forward, when in reality circumstances may dictate completely different approaches to controlling nutrients. Many of the stakeholders shared NACWA’s view that a technology-only document, without consideration of the regulatory drivers and impacts involving nutrients, would not be well-received by the clean water community.

The dialogue included a much broader group of stakeholders than were present in February to better ensure that all perspectives were provided. An initial nutrient document based on the discussions is expected to be released in late January 2014. NACWA will work through its Water Quality Committee to provide comments and input on the development of the document.

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