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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the February 2014 Regulatory Update.  This Update provides a summary of relevant regulatory issues and actions from February 2014.

Top Stories

NACWA Meets with Top EPA Air Officials on Sewage Sludge Incineration Rule

NACWA met February 19 with Janet McCabe, Acting Assistant Administrator for the Office of Air & Radiation and President Obama’s nominee to lead that office, to discuss EPA's plans for addressing the D.C. Circuit’s partial remand of the sewage sludge incinerator (SSI) maximum achievable control technology (MACT) rule. The discussions also included the possibility of staying the effective date of the current rule until the remand process is complete. McCabe noted that no final decisions have been made regarding the remand and that the Agency was carefully considering how to proceed. It was clear, however, that EPA’s preferred approach is to simply supplement the rationale in the current rule with additional explanation of EPA’s methodologies for addressing insufficient data and variability.

The D.C. Circuit’s remand order provided the Agency with exactly this option and it appears that EPA is likely to take this path to address the remand. On a positive note, EPA’s reluctance to proceed with a new rulemaking also means that it has not been convinced by the Sierra Club’s arguments that the current rule must be revised to make the emission standards more stringent. On the issue of a stay, McCabe and her staff were sympathetic to NACWA’s concerns that utilities do not have the resources to comply with the current rule – only to have the emissions standards change through a remand process, potentially requiring even more resources. The Agency understands that the clean water community needs certainty and needs it soon, but they also stressed that they were unlikely to recommend a course of action, such as a stay, that would stop the rule from moving forward. EPA indicated that they would keep in close contact with NACWA as the Agency continues to decide on its path forward. The Association is currently drafting a formal petition for a stay of the rule’s compliance deadline. The petition will be submitted to EPA soon, and NACWA will use the discussion from this meeting to help craft the most compelling arguments possible in the petition.

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 Resiliency

Advisory Committee Meets on Climate Change & Water Resources

The Climate Change & Water Resources Workgroup of the Federal Advisory Committee on Water Information (ACWI) held its first in-person meeting February 19-20 to begin developing key actions needed to improve water resources adaptation. These recommended actions are being developed in response to the President’s Climate Action Plan and the Executive Order on Climate Change Preparedness. The Workgroup is comprised of representatives from a variety of federal agencies, water associations (including NACWA), environmental groups, and state and local government associations.

The Workgroup is focusing its key actions around five issues: 1) improving water and climate change information for decision-making; 2) strengthening assessments of water resources vulnerability to climate change; 3) expanding water use efficiency; 4) supporting integrated water resources management; and, 5) supporting training and outreach to build response capability. NACWA’s participation in the Workgroup ensures that the priorities and information needs of clean water utilities will be considered in the Workgroup’s recommendations. The Workgroup’s recommendations will also be used to inform the discussion at the Water Resilience Summit — an invitation-only dialogue that will be hosted by NACWA and the Association of Metropolitan Water Agencies (AMWA) this April during Water Week 2014.

NACWA will continue to keep members updated on the recommendations of the 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 .

Conferences & Meetings

National Water Policy Forum and Fly-In is April 7-9

NACWA is joining with the Water Environment Federation (WEF) and the Water Environment Research Foundation (WERF) for the National Water Policy Forum & Fly-In as part of the first Water Week, being held April 7-9, 2014. The Forum & Fly-In will bring together water and wastewater professionals from across the country to meet with Members of Congress and federal regulators to share perspectives on federal clean water policy. The agenda features Congressional speakers, policy briefings, visits to Capitol Hill, and roundtable dialogues with key policymakers. Registration is $250 and hotel rooms are available for $299 rate per night (single/double), plus applicable taxes, at the Capital Hilton. Hotel reservations must be made by Monday, March 17, 2014 to receive the special rate. To ensure a hotel room, contact the Capital Hilton in Washington, DC at 202/393-1000 and be sure to identify yourself as a Water Policy Forum attendee.

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

Save the Date for NACWA’s 2014 Pretreatment & Pollution Prevention Workshop

NACWA’s National Pretreatment & Pollution Prevention Workshop will be held May 14-16 at The Depot Renaissance Minneapolis Hotel in Minneapolis, MN. An optional pretreatment training session will be held at the same location on May 13. The Workshop agenda will be available soon on NACWA’s Conferences & Professional Development webpage, and topics that will be addressed include bio-cremation, flushable wipes, microbeads and other contaminants in consumer products, and hauled wastes. EPA Regional Pretreatment Coordinators will be at the Workshop for the popular Regional Roundtable Session, and opportunities will be provided for Workshop attendees to network and share experiences regarding common pretreatment program issues.

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

EPA

NACWA, EPA Wastewater Management Office Explore Opportunities for Collaboration

On February 20, NACWA met with Andrew Sawyers, Director of EPA’s Office of Wastewater Management (OWM), to discuss areas of common interest where NACWA and OWM can potentially work together. The related areas of integrated planning and affordability were discussed extensively. NACWA and OWM discussed ways to encourage more utilities to consider integrated planning in a permitting context, the possibility of securing funding for integrated planning pilots and the forthcoming affordability framework. While EPA continues to make progress on the affordability issue, NACWA noted that its legislative efforts to seek wholesale revisions to the 1997 guidance will continue until all of the Association’s concerns are addressed.

NACWA and OWM also discussed ongoing efforts to secure a renewed commitment among the signatories to the 2007 Green Infrastructure Statement of Intent, as well as other stakeholders, to continue to promote the use and benefits of green infrastructure; NACWA’s work with the Association of Metropolitan Water Agencies (AMWA) on the April Water Resilience Summit; and, a number of funding issues – including better leveraging the state revolving loan funds and tapping into private financing and investment. NACWA and OWM committed to continuing to have similar meetings on a regular basis.

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 & Collection Systems

Technical Workgroup on Flushability of Wipes Set to Begin

The Board of Directors of the Water Environment Federation (WEF) approved funding in late February for a technical workgroup that will address flushability issues related to wipes and other products, allowing the workgroup to move forward as envisioned by NACWA, WEF, the American Public Works Association (APWA) and INDA (the trade association of the nonwoven fabrics industry). NACWA’s Board previously approved Targeted Action Fund (TAF) funding for the workgroup, and INDA has also approved funding.

The idea for the technical workgroup arose during the July 2013 meeting of NACWA, WEF, APWA, and INDA, where the associations decided that flushability issues would best be addressed by a small group of experts from the wastewater and wipes industries. The facilitated workgroup will try to reach consensus on the concepts and definitions related to flushability and the appropriate test methods to screen out non-flushables and verify a product’s safety for collection systems, treatment plants, and septic systems. If the discussions of the workgroup are successful, one set of flushability standards would be developed that both the wastewater and wipes industries agree on. These flushability standards would be the basis for voluntary testing and labeling by manufacturers and retailers. Current claims of flushability are now being challenged in court (see below).

The workgroup will consist of representatives from NACWA, WEF, APWA, and INDA and will have three meetings over the next four to five months. The workgroup is an important component of the “War to Protect Our Pipes, Pumps, Plants, and Personnel” campaign that NACWA announced in October, to reduce the amount of wipes and other inappropriate products that are flushed or drained into the sewer system.

Class Action Lawsuit Challenges Flushability Claim for Wipes

A class action lawsuit was brought against the Kimberly-Clark Corporation and the Costco Wholesale Corporation in the U.S. District Court, Eastern District of New York, on February 21, on behalf of consumers that have experienced plumbing problems in their home plumbing due to wipes that are labeled flushable. The lawsuit asks for $5 million due to the “deceptive, improper or unlawful conduct in the marketing, manufacturing, distribution, and sale of flushable wipes,” in violation of the New Jersey Consumer Fraud Act and the New York Deceptive Practices Act General Business Law. The lawsuit also states that the “Defendant’s conducts also constitutes negligent misrepresentation and unjust enrichment, as well as a breach of express warranties.” The extensive press coverage that has occurred in the last year was referenced in the lawsuit allegations, including quotes and information from NACWA and its utility members.

NACWA will keep members informed about the progress of this lawsuit and any others that arise about the problems caused by wipes or other products that claim to be flushable.

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

Integrated Planning/Financial Capability

Upcoming Region 8 Integrated Planning Workshop

NACWA continues to work with EPA and regional partners to host a series of workshops on the Integrated Planning Framework across the country. After six successful workshops, we are kicking off 2014 by holding a Region 8 workshop in Denver, Colorado on March 31. Detailed information on will be made available on NACWA’s website as it is available.

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

Cybersecurity Framework and Voluntary Program Released

In February 2013, the President signed Executive Order (EO) 13636: Improving Critical Infrastructure Cybersecurity and released Presidential Policy Directive (PPD)-21: Critical Infrastructure Security and Resilience, with the goal of improving the overall security and resilience of the nation’s infrastructure. The Cybersecurity Framework was released on February 12, as directed in the EO and PPD-21, and the Department of Homeland Security (DHS) also announced the creation of the Critical Infrastructure Cyber Community (C3) Voluntary Program. The C³ Program is a public-private partnership that will support and promote the Cybersecurity Framework by providing critical infrastructure owners and operators with existing resources to help manage cyber risks. The program will encourage an all-hazards approach to risk management, integrating protection against cyber, natural, and terrorist threats.

At press time, the Water Sector Coordinating Council (WSCC) was being briefed on the Cybersecurity Framework and C³ Program at its March 4-5 meeting, and NACWA and the water sector associations will provide more information to their members about how the program may be useful to utilities. NACWA is also working with DHS to arrange a webinar for the Association’s Security & Emergency Preparedness Committee on the Framework and C³ Program. Interested utilities are encouraged to contact NACWA’s Director of Regulatory Affairs, Cynthia Finley.

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

EPA to Solicit Public Comment on Potential RDA Designations

EPA recently informed NACWA via a letter that the Agency will solicit public comment on any proposed designations in response to environmental activist petitions requesting the Agency exercise its residual designation authority (RDA) for stormwater permits in EPA Regions 1, 3, and 9. The letter comes in response to NACWA’s November request for a public process to provide input. EPA’s letter stated that the regional offices are currently “giving these petitions thoughtful, deliberative consideration, given the petitions’ broad geographic and categorical scope, as well as implications for states, local governments and any potentially newly regulated entities.” EPA plans to take public comments on any proposed designations before making any final designations and or requiring new stormwater permits. Response from EPA to the petitions was expected by the end of February, but will likely not be until the middle of March.

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

Utility & Resource Management

Performance Benchmarking for Effectively Managed Water Utilities – Webcast

The Water Research Foundation (WRF) has created a practical tool for utilities to conduct assessments and develop organizational attributes to meet specific goals and will be hosting a webinar on March 6 to illustrate how it can be used. The tool builds on recommendations presented in Effective Utility Management (EUM): A Primer for Water and Wastewater Utilities (EPA, AMWA, APWA, AWWA, NACWA, NAWC, WEF, 2008). WRF identified two major gaps that hampered utilities’ efforts when trying to implement the Ten Attributes of EUM defined in the Primer: 1) an explicit identification of practice areas that utilities can use to support these efforts; and 2) a structured process benchmarking exercise to guide the development and implementation of these attributes.

Thursday, March 6, 2014, 3:00–4:00 pm EST
Register online
View/download the project resources

The Webcast will include three primary topics: background on the project and summary of primary findings and products; description of the recommended process for conducting a self-assessment; illustration of how to use the benchmarking tool developed for the project to conduct a self-assessment.

Water Quality

NACWA Poised to Review FAQs on Recreational Water Quality Criteria

During NACWA’s Winter Conference in Santa Fe in early February, the Association learned that EPA Headquarters was preparing to release a set of frequently asked questions (FAQs) on establishing permit limits and requirements based on the revised recreational water quality criteria released in 2012. Since EPA initiated its work to develop the revised criteria more than five years ago, NACWA has been focused on ensuring the Agency developed adequate implementation guidance. Implementation of the current criteria, last updated in 1986, has suffered from the lack of guidance. While EPA attempted to develop implementation guidance for the 1986 criteria in the early 2000s, that effort failed. When the Agency announced the revised criteria in December 2012, it assured NACWA that implementation guidance was being developed. In July of last year, however, NACWA learned that EPA had instead decided to develop FAQs in lieu of guidance. While guidance is often subject to additional review, including review by the White House’s Office of Management & Budget, FAQs do not require such review. NACWA has registered its objections with the Agency over the use of FAQs and the lack of any public comment period. The Agency intends to post the FAQs as a ‘living document’ that can be updated as new information is made available. NACWA will alert the membership as soon as the FAQs are posted and will review and prepare comments, as necessary.

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

EPA to Appeal Decision in Mississippi River Nutrients Litigation, Requests Stay

EPA decided to pursue a substantive appeal in litigation over potential federal numeric nutrient criteria (NNC) in the Mississippi River Basin (MRB) on February 11. EPA also filed a motion to stay a federal district court order in the case during the appeal. If successful, EPA’s stay request would delay the Agency’s mid-March deadline for making a formal determination on the need for federal NNC in the MRB until the appeals process is resolved. A September 2013 federal district court ruling gave the Agency 180 days to make a formal determination on the need for federal NNC, but also gave EPA wide discretion in the factors it could consider when making a necessity decision. Additional information on the district court’s order is available in Advocacy Alert 13-15. The district court has set a late February hearing on EPA’s stay request.

The litigation, Gulf Restoration Network v. EPA, was initiated in March 2012 by environmental activist groups challenging the Agency’s decision to deny a 2008 petition seeking the establishment of federal NNC for the MRB and other waters. NACWA intervened in the litigation to help EPA defend the petition denial and advocate against the imposition of federal NNC. Additional information on the case and relevant court documents are available on NACWA’s Litigation Tracking webpage.

EPA filed a notice of appeal in the case in November to preserve its appeal rights, but did not make a decision to actually pursue a formal appeal of both the procedural and substantive issues in the district court’s order until this week. NACWA was generally pleased with the lower court ruling, especially its clear affirmation of EPA’s discretion to consider a wide range of factors in evaluating the need for federal NNC. The Association will work to ensure the positive aspects of the district court ruling are not disrupted on appeal.

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 .

Update on Freshwater Criteria Development and Connectivity Report

On February 19, during the water sector’s bi-monthly meeting with Nancy Stoner, Acting Assistant Administrator for the Office of Water, NACWA joined other water stakeholders to discuss a range of topics. EPA addressed the schedule for two upcoming water quality criteria revisions – selenium and chloride – which are currently under development. A peer-reviewed draft of the selenium criteria will be released in the Federal Register for public comment in mid-March. The chloride criteria draft will likely not be published until late 2014. EPA also updated the water sector groups on the Science Advisory Board’s (SAB) review of the report, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence, and announced that a draft of the report will be published in the Federal Register on March 17.

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

NACWA to Review EPA Update of Human Health Criteria

NACWA learned in late January during a briefing with EPA staff that the Agency is preparing to release a package of documents intended to make nearly all of EPA’s human health criteria – 93 organic pollutants – consistent with its Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health, published in 2000. EPA is updating toxicity information (reference doses, cancer slope factors), applying a relative source contribution (RSC) of 20 percent for non-carcinogens, replacing biological concentration factors (BCFs) with biological accumulation factors (BAFs), and updating exposure information including fish consumption rates and bodyweight and drinking water intake assumptions. EPA is planning to release the package in late February or early March for a 60-day public comment period.

While NACWA does not yet have all the details, the net effect of the changes will result in more stringent criteria and could result in selected bioaccumulative human health pollutant criteria decreasing (becoming more stringent) by up to 50 times. One of the most contentious issues, which is currently being hotly debated in Washington State, is the issue of fish consumption rates. NACWA understands that EPA is likely to make only minor changes to the current fish consumption rate on the national level, but will include in its release some “sub-national levels” that could mirror the more stringent levels recently adopted by Oregon and currently being considered in Washington. There is a short list of pollutants that, for various reasons, will not be included in the update. Those pollutants include: PCBs, asbestos, methylmercury, dioxin, nitrates, nitrosamines, and several inorganic metals including arsenic and thalium. NACWA will alert the membership when the revisions are made available for comment.

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

Members seeking more information or related regulatory activity in their state can access NACWA’s State Action Track web tool, here.