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June 2014 Regulatory Update
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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the June 2014 Regulatory Update. This Update provides a summary of relevant regulatory issues and actions from June 2014.
Top Stories
Association Members Participate in EPA Public Health Forum on BlendingNACWA members participated in EPA’s Expert Forum on Public Health Impacts of Blending, held June 19-20 in Fairfax, Virginia, to discuss the public health implications of discharges from blending of peak flows at publicly owned treatment works (POTWs). The panel participating in the Forum was comprised of seven public health experts and five wastewater treatment experts. Betsy Reilley, from NACWA Member Agency the Massachusetts Water Resources Authority, served as a public health expert on the panel. Reilley was joined by Adam Olivieri of EOA, Inc., who was also nominated by NACWA. Association Member Agency representatives serving as wastewater treatment experts were Dave Wagner, City of Lawrence Department of Utilities (Kansas), and Donald Gray, East Bay Municipal Utilities District (California). The Forum focused specifically on the public health impacts of blending of peak wet weather flows at POTWs, with regulations and legal questions not open for discussion. During remarks at the April National Water Policy Forum & Fly-In, U.S. Environmental Protection Agency (EPA) Acting Assistant Administrator for Water, Nancy Stoner, noted that the Agency hoped to use the Forum to guide its decisions on applicability of the March 2013 Iowa League of Cities v. EPA decision outside of the Eighth Circuit. In an April letter The Forum began with a detailed presentation by the wastewater experts on the challenges and options for managing wet weather flows at POTWs. The panel then discussed what is currently known, as well as the information gaps, regarding the health risks associated with wet weather flows and blending. The characterization of pathogens and pollutants was discussed, along with the key factors that would increase or decrease their risk. The panel addressed the use of indicators to evaluate human health risks, and concluded with a discussion of additional data that would be useful in evaluation. There were no clear conclusions regarding the public health impacts from the practice of blending, but it was evident that all of the experts agreed that engineered solutions tailored to the needs of each POTW can minimize risks and ensure the maximum quantity of flows are treated, all while protecting the integrity of the biological components of POTWs. Brief public comments were allowed at several points during the Forum. NACWA and several of its Affiliate Members commented that POTW treatment trains with blending are designed to meet water quality standards, as necessary to meet designated uses, and asserted that water quality standards – not secondary treatment – should drive the processes used at the plant to meet pathogen requirements. The Association will follow up with EPA regarding the discussion at the forum, and the Agency’s next steps to address blending. NACWA will press EPA to make the report from the expert panel available to the public and will keep the members apprised of any developments. Contact: Cynthia Finley at 202/533-1836 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it Comment Period Extended for Waters of the U.S. Rule, NACWA Releases Fact SheetEPA and the U.S. Army Corps of Engineers recently released a draft Waters of the U.S. (WOTUS) proposed rule that is intended to clarify the jurisdictional reach of the Clean Water Act. The rule’s 90-day public comment period deadline was originally set for July 21, but in June, the agencies responded to requests from multiple groups and extended the deadline to October 20, 2014. NACWA is preparing formal comments on the draft rule and has developed a WOTUS Fact Sheet On a related note, the House Transportation & Infrastructure Subcommittee on Water Resources and the Environment held a hearing on June 11 to examine the potential impacts of the WOTUS proposal. Among those testifying were Bob Perciasepe, EPA’s Deputy Administrator and Jo-Ellen Darcy, Assistant Secretary of the Army for Civil Works. The hearing focused on whether ponds, ditches, and other wet areas would be subject to CWA jurisdiction if this draft rule was to be implemented. Although Perciasepe and Darcy assured members that the proposed rule was intended only to add greater clarification to the existing rule and that no new waters would be regulated, many members of the Subcommittee remained skeptical of this assertion. Based upon Committee members’ impassioned reactions and preliminary comments from interest groups, it is clear that this rule will remain controversial and in the spotlight for some time. NACWA will be closely monitoring developments on the WOTUS proposal, and urges members to keep in touch with NACWA staff should this issue raise any concerns for their agency. Contact: Brenna Mannion at 202/533-1839 or
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Biosolids
NACWA Pushes Back on Biosolids Land Application BanNACWA joined a number of other organizations May 30 to file a brief NACWA is participating in the case on behalf of the Association’s Washington State members that are adversely impacted by the land application ban. Additionally, NACWA has expressed long-standing opposition to biosolids land application bans, especially those passed by local counties that could negatively impact municipal clean water utilities in neighboring jurisdictions. The Association is committed to preserving the ability of municipalities to choose the method of biosolids management that works best for their communities, including the option of land application. NACWA joined with the Northwest Biosolids Management Association and other interested municipal groups in Washington to file the brief. Additional information can be found on NACWA’s Litigation Tracking webpage. 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
Clean Water Agencies Benefit from Supreme Court Greenhouse Gas RulingThe U.S. Supreme Court’s decision this week in Utility Air Regulatory Group v. EPA 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
Register now for NACWA’s 2014 Summer ConferenceNACWA’s Summer Conference, Executive Utility Leadership . . . Today & Tomorrow, has lots to offer including an exploration of the increasingly vital role clean water utilities play in the economic, social and environmental health of their communities and the evolving roles and responsibilities utility managers will need to take on as they prepare for the workplace and workforce of the future. Registration and a preliminary agenda
Emerging Contaminants
NACWA Asks FDA to Restrict Triclosan Use in SoapsNACWA submitted comments In its letter, the Association explained that wastewater utilities are concerned about triclosan and other antimicrobial chemicals due to their potential effects on the bacteria used to treat wastewater, as well as the environmental impacts of triclosan contained in treated effluent and biosolids. While utilities can regulate the chemicals discharged into the sewer system by industrial and commercial facilities, they have no authority to regulate the domestic discharge of chemicals in consumer products. NACWA’s letter stressed that “[w]hile EPA is currently reviewing the use of triclosan as a pesticide, the vast majority of triclosan uses are for FDA-regulated consumer products that are washed down the drain. FDA must therefore consider the full range of wastewater and environmental impacts of triclosan, and other antiseptic chemicals, when approving the use of products containing these chemicals.” NACWA urged further cooperation between EPA and FDA to regulate the use of chemicals to better protect human health and the environment. NACWA’s Toilets Are Not Trash Cans! campaign is focused on product stewardship to keep harmful products out of the sewer system. The Association’s advocacy on triclosan is part of this campaign, which also includes work to reduce the amount of pharmaceuticals, wipes (see related story below), and other non-dispersible products that are inappropriately flushed. Contact: Cynthia Finley at 202/533-1836 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Facilities and Collection Systems
Flushability Issues Addressed by Technical Workgroup; Litigation Attempts ExpandThe technical workgroup that is addressing issues related to the flushability of wipes held its second in-person meeting on June 27 to begin forming consensus findings about issues related to flushability testing and product labeling. The first meeting focused on information sharing between the groups to better define the processes, procedures, and problems faced by both the wastewater utilities and the wipes industry. During the third and final meeting of the workgroup in August, the workgroup will reach final consensus on the issues related to wipes, with a goal of outlining a workable path forward to improve flushability testing and labeling of wipes. The workgroup, comprised of representatives from NACWA, the Water Environment Federation (WEF), the American Public Works Association (APWA), and INDA (the trade association of the nonwoven fabrics industry), receives part of its funding through the Association’s Targeted Action Fund (TAF). NACWA continues to evaluate and monitor potential legal action in this arena. The Association is aware of consumer class action lawsuits that have been filed against wipes manufacturers. The facts in those cases involve consumers who have purchased products marketed/labeled as flushable that when flushed have caused backups and blockages resulting in property damages. A large class action law firm also recently sent a solicitation letter to many municipal wastewater utilities on the issue of recovering costs related to flushable wipes. The letter invites utilities to join a potential lawsuit against wipes manufacturers, but does not provide details on what legal causes of action it could pursue to help utilities “recover operation, maintenance, and capital costs associated with ‘flushable’ wipes – at no cost” to the utility. NACWA recently spoke to a representative from the firm to get a better understanding of their approach and objectives, and it was apparent that the firm’s analysis of the issues and legal strategies was still very preliminary. The causes of action being explored by the firm include product liability and consumer fraud. NACWA will continue to monitor this solicitation effort to assess the merits of such action and see how the legal theories evolve. NACWA requests that any NACWA Member Agencies considering legal action contact us. Contact: Cynthia Finley at 202/533-1836 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Funding/Financing
Obama Signs Water Resources Bill into Law, Includes Overhaul of the CWSRF ProgramPresident Obama signed the bipartisan Water Resources Reform and Development Act (WRRDA) into law on June 10. The $12.3 billion package reauthorizes flood control projects around the country and includes a major overhaul to the Clean Water State Revolving Fund (CWSRF) program. NACWA has been urging Congress and the Administration to demonstrate their commitment to the CWSRF as a core investment tool for municipal wastewater agencies, and the changes in the WRRDA bill reflect this work. Specifically, WRRDA will 1) extend the CWSRF loan repayment periods from 20 years to up to 30 years; 2) codify additional subsidization provisions enabling economically distressed communities to receive more affordable financing; 3) incentivize investments in energy efficiency, water efficiency and reuse, as well as sustainable infrastructure practices – in line with the Water Resources Utility of the Future campaign; 4) incentivize partnerships between municipal wastewater utilities and upstream property owners to collaboratively tackle non-point source pollution and improve water quality, and 5) incentivize wastewater utilities to undertake practices to ensure increased resiliency against man-made and/or natural disasters. These new provisions offer significant benefits to NACWA Member Agencies. The Association will be working with EPA staff to develop the regulations and guidance to implement these SRF program changes. Contact: Chris Hornback at 202/833-9106 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it Finance Dialogue Opens Door to Public/Private Sector CollaborationNACWA hosted a Clean Water Finance Dialogue in New York City on June 24 with approximately 40 representatives from private investment firms, NACWA Member Agencies, and the U.S. Environmental Protection Agency (EPA). Emily Lloyd, the recently-appointed Commissioner for the New York City Department of Environmental Protection, provided welcoming remarks and expressed appreciation for NACWA’s role in both convening the Dialogue and to finding innovative ways to address an increasingly complex regulatory regime and growing affordability challenges. The facilitated session on June 24 focused on the potential for the public clean water sector to partner with the private sector on mutually beneficial projects, but with the understanding that the issue of utility privatization was not on the table for discussion. There was general agreement that a new injection of major federal funds in the near future was unlikely and that utilities and cities across the country face significant affordability challenges as their infrastructure continues to age and regulatory and enforcement pressures continue to mount. All of these factors make private capital a potentially important part of the water infrastructure picture. It is apparent that the finance paradigm is changing and there will be increasing pressure for the public and private investment interests to partner. The Dialogue also underscored the importance of NACWA’s advocacy efforts on the Water Resources Utility of the Future (UOTF) initiative, with UOTF-type projects in the reuse, energy production, and resource recovery arenas also being the most likely candidates for public-private partnerships. The Dialogue demonstrated that private and public interests can set some philosophical differences aside and engage in very productive discussions. NACWA plans a summary of the Dialogue and will build on this initial effort to ensure a meaningful, long-term collaboration with private sector investors. For a more detailed discussion of the Dialogue by NACWA’s Executive Director, Ken Kirk, see the June 25 blog post at The Water Voice. Contact: Chris Hornback at 202/833-9106 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Sustainable Infrastructure
EPA Announces Green Infrastructure Summit, Plans ExpoOn June 24, EPA convened a meeting of a group of green infrastructure partners, including NACWA, the American Society of Landscape Architects (ASLA), the Low Impact Development Center, American Rivers, American Forests, and the Water Environment Federation (WEF) to discuss EPA’s interest in hosting a Green Infrastructure (GI) Expo on Capitol Hill. The Expo would both explain and highlight GI for Members of Congress and their staffs. Although planning is in its very early stages, the Expo will likely be held in September, and feature selected community programs and projects that utilize sustainable infrastructure to address stormwater and other wet weather issues. The GI Statement of Intent which NACWA and its partners have been developing over the past few months with EPA, will likely be highlighted as part of this Expo. NACWA will update members as details for the GI Expo are finalized. EPA also announced this week that it will partner with NACWA Member Agency, the Northeast Ohio Regional Sewer District (NEORSD), to host the 2014 Community Summit on Green Infrastructure (Summit) on October 26-28 at Cleveland State University in Ohio. At the Summit, EPA partner communities and technical assistance recipients will engage in peer-to-peer exchanges about the issues that they are encountering in developing and implementing GI programs. The Summit also provides an opportunity for NEORSD to highlight its leadership in the use of sustainable infrastructure to address wet weather concerns. 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 of the FutureReuse Working Group Discusses NACWA Advocacy Role & CollaborationNACWA has been increasingly involved in water reuse issues recently, largely as a part of its Water Resources Utility of the Future initiative – with activity in this arena increasing as the drought in the West continues and member needs and federal interest in this area expand. Last week, a Water Reuse Working Group comprised of interested and active NACWA member utilities held its first conference call to help determine the scope of – and to strategically guide – the Association’s advocacy around water reuse and recycling issues. Over 15 agencies from across the country were represented on the call. Participants acknowledged that water reuse is an increasingly important, but also highly complex, issue. There was general consensus that there should be an expanded NACWA role to raise the profile of reuse, secure funding, overcome permit process inefficiencies, and connect utilities to appropriate resources to streamline reuse project execution. Members agreed that any actions taken should be collaborative, and not duplicative of initiatives underway by other organizations, especially the WateReuse Association. Regional reuse partners were also identified. NACWA is working on a one-pager based on the conference call that will discuss the scope and strategic advocacy priorities on reuse for the Workgroup to review. 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 Meets with EPA on New Water Quality Criteria for VirusesNACWA met with key staff from EPA's Office of Science & Technology (OST) in June to discuss the Agency's efforts to develop water quality criteria for viruses. The Association learned earlier this year that EPA was working to develop a criterion for bacteriophage, a viral indicator with properties similar to many of the viruses the Agency is concerned about. During the meeting, OST officials briefed NACWA on their efforts to develop a bacteriophage criterion based on existing data in the peer-reviewed literature, and to develop and validate a test method for bacteriophage for use in Clean Water Act (CWA) programs. EPA's current timetable would have a proposed criterion ready for public comment in one to two years. For decades, CWA programs have relied on fecal indicators such as fecal coliform or E. coli and enterococcus to evaluate public health risk associated with effluent, combined sewer overflow control, and other programs. In discussing the issue with EPA, NACWA stressed that development of a criterion for viruses could have widespread and major impacts on all aspects of the CWA and encouraged the Agency to move forward cautiously. The Association also urged OST staff to work closely with their counterparts in the Office of Wastewater Management to evaluate the impact on the CWA permitting program. NACWA also recommended that EPA work with the Water Environment Research Foundation (WERF) to conduct studies on how bacteriophage behaves in wastewater treatment plants, how it is effected differently by current disinfection practices, and how levels of bacteriophage compare to current indicators that are tracked by clean water agencies. NACWA has reached out to WERF and the Water Environment Federation (WEF) and will be coordinating with both organizations on the need for additional research and more technical information on the performance of disinfection technologies. 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 Clarification on EPA Draft Selenium Criteria, Supports Overall ApproachNACWA provided comments The Draft Criteria Document also clearly states that fish tissue data should take precedence over water column data in assessing whether the criteria are met when both types of data are available. While NACWA supports the general approach taken in the revision, the Association comments also outline a number of concerns. NACWA echoed the concerns of its members in Colorado, where there are naturally high background levels of selenium, and cited a technical report that was prepared on behalf of the Colorado Wastewater Utility Council. The Draft Criteria Document will undergo peer review after which EPA will make any needed revisions before releasing the final draft for another round of public 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
Wet WeatherNACWA Weighs In with EPA on Key Region 2 CSO Policy IssueOn June 9, NACWA sent a letter NACWA’s letter asserts that the Region’s position clearly violates the CSO Policy and the Clean Water Act. The Association further requests that EPA unequivocally reaffirm in writing its commitment to the CSO Policy, including the language on use of a “knee of the curve” cost/performance analysis when evaluating appropriate expenditures for CSO projects. NACWA would like to know if other Association members have been presented with similar interpretations of the CSO Policy by state or federal regulators. Contact: Chris Hornback at 202/833-9106 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it
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, the Agency explained that the decision would be “binding precedent” in the Eighth Circuit, but Stoner indicated that it would be applied on a “case-by-case” basis elsewhere. NACWA, along with the U.S. Conference of Mayors (USCM), the National League of Cities (NLC), and the National Association of Counties (NACo), sent a 
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