» Clean Water Current Archive

December 13, 2013

Federal Court Dismisses Challenge to Water Quality Trading

A federal district court in Washington, DC issued a ruling  Dec. 13 dismissing a legal challenge to the water quality trading provisions in EPA’s final total maximum daily load (TMDL) for the Chesapeake Bay, preserving a vital tool to achieve water quality improvements in the Chesapeake Bay watershed and nationwide. The court dismissed the case because the environmental activists groups that filed the litigation did not have legal standing to bring the challenge and because the provisions of the TMDL discussing trading did not qualify as final agency action.

NACWA joined with a number of other municipal organizations to intervene in the litigation earlier this year in defense of water quality trading programs, and is pleased the court has dismissed the legal challenge. Although the court did not rule directly on the merits of whether water quality trading programs are authorized by the Clean Water Act (CWA), there is language in the decision suggesting that trading programs and offsets are legal as long as they comply with the overall requirements of the CWA. NACWA will distribute additional information and analysis of the decision next week.

USCM, NACo, NLC Lead Municipal Group Discussion on Affordability with EPA

NACWA attended a meeting of municipal leaders and senior EPA officials today to discuss the issue of financial capability and affordability. Convened by the U.S. Conference of Mayors, the National Association of Counties (NACo) and the National League of Cities (NLC), the meeting focused on the Agency’s draft affordability framework, which EPA hopes will provide additional clarity on how it plans to conduct financial capability assessments for meeting Clean Water Act mandates. EPA circulated a draft of the framework with the Mayors, NACo and NLC in October, and NACWA was given an opportunity to review and provide comments on the draft during an internal discussion of the municipal groups on October 31.

Based on NACWA’s review, the current draft of the affordability framework is a step in the right direction but ultimately provides insufficient additional clarity. The framework reasserts that the Agency’s 1997 guidance is the baseline for all financial capability assessments and highlights that utilities can provide additional information to supplement the guidance’s calculations – something that the 1997 guidance allows for already.

Mayors, along with city and county leaders, from across the country provided feedback to EPA Deputy Administrator Bob Perciasepe and other senior EPA officials during Friday’s meeting with the objective of influencing the content of the final framework. The discussion focused on EPA's continued reliance on median household income for assessing affordability, the need for greater consistency and transparency in regional implementation and the many unique challenges that communities across the country face. NACWA will be convening its Money Matters Task Force early next month to discuss the outcome of the meeting and will provide additional details on the discussion at the upcoming joint meeting of the Legislative and Regulatory Policy and Legal Affairs Committees during the NACWA Winter Conference in Santa Fe.

House Passes Budget Deal and Farm Bill Extension, WRDA Conference Continues

The House passed a bipartisan budget agreement Thursday which sets a top-line spending total through FY2015, partially alleviates the across-the-board spending cuts known as the sequestration, and eliminates the threat of another government shutdown on January 15th, when current government funding is set to expire. The deal sets government funding at $1.012 trillion until September 30, 2014, increasing slightly to $1.014 trillion until September 30, 2015. This plan should reduce the national deficit by $23 billion over 10 years. The Senate is scheduled to vote on this budget proposal next week. Specific funding levels for the Environmental Protection Agency and the other agencies will be determined in early January.

The House also passed a measure on Thursday to extend the Farm Bill through January 31 to allow Farm Bill conferees time to finish their work on a new bill. The current Farm Bill, which sets agriculture policy for five years, including working lands conservation policy with implications for water quality, is set to expire on January 1, 2014. NACWA, as part of the Healthy Waters Coalition, has been working to ensure that provisions related to nutrient management and water quality goals successfully secured in the Senate Farm Bill as part of a newly established Regional Conservation Partnership Program are ultimately adopted in the new bill. The extension now heads to the Senate where it is expected to face some resistance due to a provision that will revert dairy subsidies for the month of January, doubling the price of milk in grocery stores.

The Water Resources Development Act (WRDA) conference committee will continue their work resolving the differences between the House and Senate WRDA bills into January. Still being contemplated is the Senate-proposed Water Infrastructure Finance and Innovation Act (WIFIA) pilot program, which would provide $250 million worth of financing for both flood control projects and regionally significant water and wastewater projects. NACWA will continue to provide updates on the budget, farm bill, and WRDA conference as they occur.

NACWA, Coalition Meet to Discuss Biogenic Greenhouse Gas Issues

NACWA and other members of the Biogenic CO2 Coalition met Dec. 12 to discuss current EPA efforts regarding possible regulation of carbon dioxide (CO2) from biogenic sources, including wastewater treatment plants, and the potential impacts of a challenge before the U.S. Supreme Court to EPA’s existing greenhouse gas (GHG) regulations. During the meeting, coalition members discussed how the upcoming Utility Air Regulatory Group v. EPA litigation before the Supreme Court, scheduled for argument in late February with a decision likely by late June 2014, could limit EPA’s ability to regulate biogenic CO2 sources. Although the case does not directly deal with biogenic emissions, a ruling by the court on certain issues raised by the petitioners could effectively remove biogenic sources from EPA’s GHG regulatory authority under the Clean Air Act.

Coalition members agreed that future efforts to advocate for a permanent biogenic GHG exemption by EPA, including the option of filing a petition seeking a deferral, will be influenced by the outcome of the case. In the meantime, the coalition agreed that continued conversations with EPA about their regulatory plans, including possible efforts to craft a draft regulatory proposal for biogenic sources, should continue pending a Supreme Court decision.

NACWA joined the coalition earlier this year to add momentum to its effort to advocate for a permanent exemption from CAA permitting requirements for CO2 from wastewater treatment plants. EPA approved a temporary deferral for CO2 sources in 2011, but that deferral was struck down by a federal appellate court earlier this year. Meanwhile, the deferral rule remains in place while the Supreme Court reviews the pending challenge to EPA’s underlying GHG regulations. NACWA is hopeful the Association will be able to achieve a regulatory CO2 exemption for municipal wastewater treatment facilities.

EPA Reconvenes National Green Infrastructure Partners and Announces Availability of Technical Assistance Funds

NACWA, American Rivers, the Natural Resources Defense Council (NRDC), the Low Impact Development Center, the Association of Clean Water Administrators, the US Water Alliance, and the Water Environment Federation (WEF) met with EPA this week to lay out a path towards reaffirming the national green infrastructure (GI) partnership originally established in the 2007 GI Statement of Intent . NACWA will join NRDC and EPA in developing a new draft GI partnership document to reflect the relatively new emphasis on resiliency and re-emphasize the support for GI implementation, while continuing to build on the vision and objectives from the original Statement. The entire group will work to benchmark the original Statement objectives and develop a final statement document by the spring of 2014. Other key organizations will also be approached to join in support of the new GI Statement. A GI event to spotlight this new initiative is likely to take place during the upcoming NACWA/ WEF/ Water Environment Research Foundation’s “Water Week” event in April.

NACWA also encourages members interested in GI to explore the EPA Office of Wastewater’s $400,000 in technical assistance  being offered to communities interested in implementing GI. This technical assistance will advance the adoption of GI programs in selected communities and help develop knowledge and tools that can be transferred to other communities and to a national audience. The Agency anticipates providing assistance to 5 to 7 communities. Interested communities are encouraged to respond to the Request for Letters of Interest   by January 24, 2014, 5:00 p.m. EST. Please contact This e-mail address is being protected from spambots. You need JavaScript enabled to view it if your utility will be applying.

NACWA Comments Outline Concerns with EPA’s Proposed NPDES E-Reporting Rule

NACWA filed comments  December 12 on EPA’s proposed National Pollutant Discharge Elimination System (NPDES) Electronic Reporting Rule. A major objective of EPA’s electronic reporting (or e-reporting) rule, published in the Federal Register on July 30, is to increase the public’s access to environmental management information by requiring all NPDES permittees to submit their reports electronically to their regulator. While the clean water community acknowledges that e-reporting will become the accepted business practice over time and has significant positive potential, there are several challenges and complications with the proposed rule as it is currently laid out. EPA is proposing roughly two years for complete rule compliance, which NACWA’s comments point out is an overly aggressive timetable and will put many permittees at risk for non-compliance. NACWA and its members’ priority is data quality and, without the proper context and careful quality assurance, the e-reported information could be misinterpreted or incorrectly identify compliance issues where none exist.

NACWA recommends that the Agency consider all the issues raised in the detailed comments, including a longer time for full rule implementation as well as several pilot programs to determine appropriate timelines and to work out data quality concerns. The Association will continue to advocate for more procedural clarity and flexibility as e-reporting evolves.

Save the Date – January 30 Call on SSI Rule Implementation

NACWA will be hosting a conference call on Thursday, January 30 at 2pm Eastern to discuss implementation of the maximum achievable control technology (MACT) standards for sewage sludge incinerators (SSIs). A major focus of this call will be Title V permitting and related issues. Members of the SSI Advocacy Coalition will receive more details soon. Other members interested in participating should contact Chris Hornback at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

NACWA’s Blog of the Week:
Bipartisan Clean Water Caucus to Advance Utility of the Future Priorities

This past November found us checking an item off our list of the Water Resources Utility of the Future . . . A Call for Federal Action with the establishment of a Congressional Clean Water Caucus. Headed up by Representatives John Duncan (R-TN) and Timothy Bishop (D-NY) the caucus will spotlight cutting-edge technologies and innovative techniques and approaches in the clean water sector through a series of Congressional Briefings in 2014. With a new posting every week – subscribe to NACWA’s The Voice of Water Blog and never miss a post!

Happy Holidays!

NACWA wants to wish all of its members a safe and happy holiday season and New Year. With Congress on recess through January beginning next week – and things winding down at federal agencies for the holidays, the next Clean Water Current will be published on January 10. Thank you for your continuing engagement and support. We look forward to a busy and productive 2014!