» Update Archive

The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the November 2013 Regulatory Update. This Update provides a summary of relevant regulatory issues and actions current to the end of November 2013. The Association has added a “Funding Opportunities” section, new this month, to alert members of recent announcements regarding funding availability for POTW’s via various federal agencies.

Top Stories

Executive Order and EPA Adaptation Plans Address Resiliency, Climate Impacts

On November 1, President Obama issued an Executive Order (EO), “Preparing the United States for the Impacts of Climate Change.” At the same time, EPA released its program and regional Adaptation Implementation Plans that describe how the Agency will carry out the work of its Climate Change Adaptation Plan, written in response to a previous Executive Order (EO 13514, “Federal Leadership in Environmental, Energy, and Economic Performance”). The November 1 EO states that “The Federal Government must build on recent progress and pursue new strategies to improve the Nation's preparedness and resilience” and asks that federal agencies promote information sharing at all levels of government, risk-informed decision-making, adaptive learning, and preparedness planning. It establishes an interagency Council on Climate Preparedness and Resilience, as well as a State, Local, and Tribal Leaders Task Force on Climate Preparedness and Resilience. This Task Force includes eight governors and 16 local community leaders, including the mayors of many of the cities that NACWA members serve. NACWA will seek to ensure that information related to resilience of wastewater utilities is fully incorporated into the work of the Task Force.

NACWA and its Climate & Resiliency Committee are reviewing the EPA Office of Water Adaptation Implementation Plan, one of the program plans released by the Agency on November 1. The Plan contains several positive goals, such as supporting energy conservation at wastewater utilities and encouraging climate change consideration in the management of Clean Water and Drinking Water State Revolving Loan Funds. The Plan also contains some potential areas of concern, including integrating climate change science or information into a major rulemaking that has not yet been identified, and including climate change considerations in compliance and enforcement activities. NACWA will submit comments on the Plan by the January 3, 2014 deadline. Association members with input for the comments should contact NACWA by December 18.

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 to Comment on EPA’s Draft Strategic Plan

EPA published its Draft FY 2014-2018 Strategic Plan November 19 for public comment. In terms of water priorities, the Agency’s main goal areas for the 2014-2015 timeframe remain unchanged from their current priorities – improved public health for persons served by small drinking water systems and enhanced nonpoint source program leveraging, accountability and effectiveness.

NACWA will submit comments prior to the January 3 deadline. Please submit any feedback or comments you would like included by December 13.

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

New on NACWA’s Website –State Action Track

November marked the launch of a new feature on NACWA’s Member Pipeline: State Action Track, a web-based tool that allows members to search and track regulations and bills across a variety of clean water topics by state. Launched on November 7 via Advocacy Alert 13-17, State Action Track adds to the Association’s suite of member benefits in a unique way – giving members easy-to-use access to those legislative and regulatory happenings that affect them the most. Not only is the tool a value-added experience for members, State Action Track illustrates NACWA’s commitment to increasing state and regional collaboration by enhancing our ability to monitor state and regional issues and inform our effective federal advocacy. To access the legislation tracking tool, go to www.nacwa.org/legtracking and the regulation tracking tool at www.nacwa.org/regtracking.

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 Siloxane enforceable consent agreement (ECA) negotiation period to December 26, due to the government shutdown that interfered with the previous October deadline. The negotiations began in June 2012 and were originally scheduled to end in December 2012. 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 publicly owned treatment works (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. The ECA will also have provisions for monitoring industrial facilities that are direct dischargers. NACWA is an interested party in the negotiations and has worked with SEHSC to identify appropriate POTWs for the sampling program. The Association and its Air Quality Workgroup 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 .

Biosolids

NACWA Commends FDA on Proposed Standards Regarding Use of Biosolids

NACWA filed comments November 15 on the Food and Drug Administration’s (FDA) proposed Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption (Proposed Standards), commending the agency for its sound approach to land application of biosolids. FDA’s Proposed Standards include a carefully crafted regulatory framework that prohibits the use of human waste in the growing of produce with the exception of “sewage sludge biosolids used in accordance with the requirements of 40 CFR part 503, subpart D, or equivalent regulatory requirements” (Proposed Section 112.53). As FDA states in the preamble, the Part 503 standards “are appropriate for protecting public health” and additional restrictions are not necessary. NACWA’s letter supported the FDA’s proposed regulatory construction, which acknowledges and defers to EPA’s existing comprehensive rules.

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

Climate and Energy

Utility of the Future Partners Discuss Preliminary Energy Analysis

NACWA, the Water Environment Research Foundation (WERF) and the Water Environment
Federation (WEF) met to discuss the preliminary results of the WERF Utility of the Future Energy Analysis study. The study, which received support from NACWA’s Targeted Action Fund (TAF), will define the amount of energy that could be produced by public clean water agencies in the U.S. and quantify the costs of producing this energy. This information will help NACWA to seek support from Congress, EPA, and the Department of Energy (DOE) for the energy efficiency and energy production initiatives of its public agency members.

The study analyzes the processes used at public clean water agencies and the chemical, biological, and kinetic sources of energy in wastewater, and considers the modifications that can be made to facilities to tap these sources. Only facilities greater than 5 MGD are being included in the study, which also compares the cost of energy produced at the plant to other energy production sources. The study will be completed by the end of the year. NACWA, WEF and WERF will then consider how the results can be best used to promote the Water Resources Utility of the Future initiative’s energy objectives.

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

Johnson Foundation Report Focuses on Water and Electric Utility Collaboration

The Johnson Foundation released a new report in November, Charting New Waters – Building Resilient Utilities: How Water and Electric Utilities Can Co-Create their Futures. The report is based on an August meeting of diverse stakeholder groups, including NACWA and several of its member agencies, focused on collaboration between the water and electric power sectors to develop mutually reinforcing solutions to resource management. NACWA staff, along with representatives from the East Bay Municipal Utility District, DC Water, the City of Vancouver, Camden County Municipal Utilities Authority, and the Austin Water Utility, represented the Association’s interests at the meeting. Other participants included the Water Environment Federation (WEF), the Water Environment Research Foundation (WERF), EPA, and the Department of Energy (DOE).

The report summarizes the discussion and the ideas presented by the meeting participants to reduce costs, stretch resources, and respond to climate change for wastewater, drinking water, and electric utilities. Potential solutions to overcome hurdles to cooperation between utilities are presented in the report, including improved cross-sector communication, collaborative planning for utilities, and identifying regulatory constraints and opportunities.

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

Facility & Collection Systems

NACWA, Other Associations Urge EPA to Apply Blending Decision Nationwide

NACWA joined with other municipal organizations – including the National League of Cities, the U.S. Conference of Mayors, and the National Association of Counties – to send a letter to EPA requesting clarification on how the Agency will implement the March 2013 decision by the Eighth Circuit Court of Appeals in Iowa League of Cities v. EPA. The Court found that EPA’s blending prohibition, which restricted how municipalities could design facilities to address peak flow processing, exceeded the Agency’s statutory authority under the Clean Water Act (CWA) and was inconsistent with both EPA’s secondary treatment rule and bypass rule.

At NACWA’s National Clean Water Law Seminar, November 20-22, EPA’s Acting Assistant Administrator for Water Nancy Stoner stated that EPA believes the decision only has binding legal effect within the geographic area covered by the Eighth Circuit Court of Appeals. This includes the states of Arkansas, Missouri, Iowa, Nebraska, Minnesota, North Dakota, and South Dakota, which are in four different EPA Regions. Stoner indicated that outside of the Eighth Circuit, EPA will evaluate the use of blending on a case-by-case basis. Stoner further noted that EPA will consider a permittee’s unique circumstances – as well as all other applicable legal decisions – when determining what is appropriate for CWA compliance regarding blending in states outside the Eighth Circuit.

In line with the municipal letter, NACWA believes the ruling does have national applicability and will strongly resist any efforts by EPA to limit the case only to the Eighth Circuit. As stated in the letter, “Congress expressly granted the circuit courts original jurisdiction to review the NPDES regulations at issue under Section 509 of the CWA to ensure nationwide uniformity and ... EPA regulations provide for only one circuit to render an opinion on a petition for review. Consequently, we believe there is no legal basis to assert that the Eighth Circuit decision does not apply nationwide... The issues in this case have been causing delay and confusion for municipal entities throughout the country in addressing wet weather compliance and have greatly increased local costs, unnecessarily.” In order to help inform NACWA’s advocacy on this issue, the Association would like to hear from any members who have been told verbally or in writing by state or EPA regional officials that the decision does not apply in their particular State or Region.

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

Funding Opportunities

Bureau of Reclamation: Funding Opportunity Available to Improve Water Supply Sustainability

The Bureau of Reclamation is making funding available through its WaterSMART program to support new Water and Energy Efficiency Grant projects. Proposals are being sought from states, Indian tribes, irrigation districts, water districts and other organizations with water or power delivery authority to partner with Reclamation on projects that increase water conservation or result in other improvements that address water supply sustainability in the West.

The funding opportunity announcement is available at www.grants.gov using funding opportunity number R14AS00001.

Applications may be submitted to one of two funding groups:

• Funding Group I: Up to $300,000 will be available for smaller projects that may take up to two years to complete. It is expected that a majority of awards will be made in this funding group.
• Funding Group II: Up to $1,000,000 will be available for larger, phased projects that will take up to three years to complete. No more than $500,000 in federal funds will be provided within a given fiscal year to complete each phase. This will provide an opportunity for larger, multiple-year projects to receive some funding in the first year without having to compete for funding in the second and third years.

Proposals must seek to conserve and use water more efficiently, increase the use of renewable energy, improve energy efficiency, benefit endangered and threatened species, facilitate water markets, and carry out activities to address climate-related impacts on water or prevent any water-related crisis or conflict. To view examples of previous successful applications, including projects with a wide-range of eligible activities, please visit www.usbr.gov/watersmart/weeg.

Proposals must be submitted as indicated on www.grants.gov by 6:00 p.m., EST, Jan. 23, 2014. It is anticipated that awards will be made this spring.

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, NYWEA Host Integrated Planning Workshop

The New York Water Environment Association (NYWEA) partnered with NACWA to co-host an Integrated Planning (IP) Workshop on November 13 in Albany for public agencies across New York State. The Workshop marked the sixth in a series of nationwide IP workshops. It is clear that communities and regulators are increasingly well-informed about IP, as illustrated by the specific and productive conversation between utility leaders, New York Department of Conservation (DEC), EPA Headquarters, and Region 2 staff.

The Workshop began with New York utilities expressing their interest in IP, and describing where they see opportunities for their communities to take advantage of the Integrated Planning Framework in the face of reduced budgets and increased focus on resiliency in the aftermath of Hurricane Sandy. EPA staff elaborated on how their ongoing work to modify their Financial Capability Assessment Framework, which they plan on distributing in draft form sometime in late December, may affect the affordability component of an integrated plan. DEC and the communities acknowledged that unique clean water financing limitations in New York State, including certain restrictions on the formation of stormwater utilities and a 2% tax cap, may complicate the implementation of IP – but also potentially make it more beneficial. Unlike previous workshops, most of the conversation focused on how IP would work within a permit context, as opposed to the enforcement context. It was a unique opportunity for all the IP stakeholders to ask tough questions and work through the details of how IP may apply to their specific circumstances and situations.

NACWA appreciates the many attendees who joined us, and will continue to work with the Association of Clean Water Administrators (ACWA), the Water Environment Federation (WEF), EPA, regional partners, and our members to plan workshops in the remaining EPA regions. 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

Security

Water Sector Coordinating Council Discusses Cybersecurity and Recent Security Threats

The Water Sector Coordinating Council (WSCC) held its quarterly meeting the first week in November via webinar to discuss recent and upcoming activities related to security and resiliency of drinking water and wastewater utilities. NACWA was represented by Patty Cleveland, Assistant Regional Manager with the Trinity River Authority, Texas, and Vice Chair of the WSCC. The meeting focused on several topics, including cybersecurity and the ongoing work related to the February 12 Executive Order (EO), “Improving Critical Infrastructure Cybersecurity,” and the associated Presidential Policy Directive 21 (PPD-21). The WSCC is evaluating the updated Draft Cybersecurity Framework, which outlines how cybersecurity risk can be managed by critical infrastructure owners and operators. The Council will submit comments by the December 13 deadline. The WSCC previously submitted comments on the new National Infrastructure Protection Plan (NIPP), which is also part of the work mandated in the EO.

The WSCC also discussed recent threats that have been made to water utilities. While recent threats have not resulted in any harm, these events underscore the need for utilities to remain vigilant and to report anything suspicious. NACWA members are encouraged to join the WaterISAC to stay up-to-date on the latest information regarding security and emergency preparedness. Suspicious activity should also be reported directly to the WaterISAC (regardless of whether or not a utility is a subscriber of WaterISAC), in addition to the appropriate local authorities.

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

NACWA Files Amicus Brief in Ohio Stormwater Case; Court Rules in Missouri Case

NACWA joined the Association of Ohio Metropolitan Wastewater Agencies (AOMWA) on November 12 in filing an amicus brief in an appeal to the Ohio Supreme Court of the September 26 state appellate court ruling that NACWA member Northeast Ohio Regional Sewer District (NEORSD) had no authority to enact its Regional Stormwater Management Program (SMP). The Court further held that NEORSD lacked requisite authority under state statute, or the District’s Charter, to enact a stormwater fee and is enjoined from implementing, levying and collecting such a fee. NACWA’s brief underscores how the Court’s rejection of NEORSD’s SMP has broad implications that may hinder the ability of wastewater utilities statewide to address stormwater runoff, stating that “[w]ithout the ability to manage stormwater, Ohio’s wastewater utilities already grappling with challenging and costly federal consent decrees and Clean Water Act requirements will lose a valuable set of tools for sustainable, affordable compliance.”

Moreover, NACWA’s brief highlights the importance for clean water agencies in Ohio – and nationwide – to sufficiently fund stormwater and other wet weather management programs that are necessary to meet federal enforcement orders. In addition to regulatory compliance challenges, utilities that have their funding mechanisms inappropriately struck down by courts may be unable to manage runoff that threatens to overwhelm sewers, flood basements, wash out roads, and damage habitats in rivers and streams. More information on the litigation can be found on the Association’s Litigation Tracking webpage.

In a related development this month, the Missouri Supreme Court issued a decision Nov. 12 upholding a lower court ruling that invalidated the stormwater fee program administered by NACWA member the Metropolitan St. Louis Sewer District (MSD). The court determined through a detailed analysis that MSD’s contested stormwater user charge qualified as a tax and not a user fee under Missouri state law, and further determined that the charge was invalid because it had not been put to a voter referendum as required by Missouri law. NACWA, and a number of other municipal groups, filed an amicus brief supporting MSD’s efforts to have the state supreme court overturn the lower court decision. While NACWA is disappointed with this week’s ruling, the Association will continue to aggressively defend municipal storwmater fee programs in the judicial arena.

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 .

Utility & Resource Management

NACWA Calls on Members to Complete 2013 Index Survey

Data collection for the 2013 NACWA Index survey is now underway. The Association began sending out utility-specific survey questionnaires to all public agency members, requesting responses by December 31. NACWA public agency member primary contacts received an email the week of November 11 with an individualized questionnaire, which should take less than 15 minutes to complete. The annual Index survey is one of the most-quoted resources on the costs of sewer services, and is relied upon by wastewater agencies and a wide array of policymakers and experts. The survey can be completed online at http://www.cleanwatercentral.org/logon.asp or via hard copy.

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

Water Quality

USDA and EPA Release Water Quality Trading Partnership Agreement

Yesterday, the U.S. Environmental Protection Agency (EPA) and U.S. Department of Agriculture (USDA) released a partnership agreement to support water quality trading and other market-based approaches for ecosystem services. The agreement states that water quality trading may achieve water quality and environmental benefits more cost-effectively and efficiently than might otherwise be achieved through single-entity regulatory approaches. Water quality trading offers a more holistic approach to watershed management, engaging all sectors and sources of pollution by generating the lowest cost reductions for utilities to use towards permit compliance. As such, the agencies plan to work collaboratively to improve the credibility, integrity, and transparency of water-quality trading programs across the nation, as well as strengthen the implementation of policies and programs that encourage water-quality trading.

Presently there are active water quality trading programs in the Long Island Sound, Pacific Northwest, and Colorado to reduce excess nutrients like nitrogen and phosphorous and decrease water temperature. Larger interstate programs in the Ohio River Basin and Chesapeake Bay are currently being developed to address nutrient pollution with an increased emphasis on participation from the agricultural sector. NACWA commends the USDA and EPA for entering into such an important partnership and will continue to work closely with them on this important issue.

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

EPA Releases Watershed Management Optimization Support Tool (WMOST)

EPA’s Office of Research and Development released the Watershed Management Optimization Support Tool (WMOST), a public-domain software application designed to facilitate integrated water resources management across a watershed, in November. The tool allows water resources managers and planners to screen a wide range of practices for cost-effectiveness in achieving watershed or water utilities management goals such as meeting projected water demand and minimum and maximum in-stream flow targets. WMOST can be used to 1) identify the most cost-effective mix of management practices to meet projected human demand and in-stream flow standards, 2) understand trade-offs between meeting management goals and total annual costs, 3) characterize the sensitivity of the solution to input data and parameters. WMOST calculates the optimal solution based on user inputs of watershed characteristics, human water system characteristics, management practices, and management goals.

While not specifically designed to support EPA’s Integrated Planning Framework, Agency officials have indicated that the tool may be useful in the alternatives analysis step of the Framework.

Documentation and Model Download
Theoretical Documentation: http://cfpub.epa.gov/si/si_public_record_report.cfm?dirEntryId=261780
User Guide with Case Studies and WMOST model files: http://cfpub.epa.gov/si/si_public_record_report.cfm?dirEntryId=262280