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

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NACWA Launches Dental Amalgam Separator Survey; Comment Extension for Proposed Rule

NACWA launched a survey on November 24 to collect mercury data and dental amalgam separator program information from publicly owned treatment works (POTWs). The survey data will help NACWA develop its comments on EPA’s proposed Dental Amalgam Separator rule , which would establish pretreatment standards for the over 100,000 dental offices that place or removal amalgam fillings. These dental offices would be required to have dental amalgam separators that achieve a 99 percent reduction of total mercury, follow best management practices (BMPs), and submit annual certification reports to their POTW or other pretreatment control authority. Detailed information about the rule is available in NACWA’s Advocacy Alert 14-21. As explained in an initial position statement  on the proposal, NACWA believes that EPA has overestimated the environmental benefits of the rule and underestimated the costs of the rule to POTWs.

NACWA is asking all of its public agency members, as well as non-member POTWs, to complete this survey by Friday, December 19. Instructions for completing the survey are available at www.nacwa.org/surveyinstructions , and are also contained in the online survey.

Comment Period Extended

Ellen Gilinsky, Senior Policy Advisor at EPA’s Office of Water, announced at NACWA’s Law Seminar on November 19 that there will be a 60-day extension to the comment period for the dental amalgam separator rule. NACWA and the American Dental Association (ADA) submitted a joint request  for this extension, which was followed by requests from other national and regional associations. The new comment deadline is February 21, and this extension will give the Association time to collect data and thoroughly consider the potential impacts of the proposed rule.

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 Comments on Proposed Waters of the U.S. Definition

NACWA outlined the implications of the controversial Definition of ‘‘Waters of the United States’’ Under the Clean Water Act proposed rule for wastewater and stormwater collection and treatment systems in comments  submitted November 13. The rule, jointly proposed by EPA and the U.S. Army Corps of Engineers (USACE) in April, sought to provide additional clarity on which waters were protected by the Clean Water Act (CWA).

The proposed rule takes some important steps to strengthen the water quality protections afforded by the CWA as part of a holistic watershed approach. Unlike previous efforts to provide additional clarity through guidance, NACWA has advocated for an official rulemaking to better address some of the uncertainty surrounding CWA jurisdiction preceding and following the 2006 Supreme Court decision in Rapanos v. United States. NACWA’s comments commended EPA for maintaining the manmade waste treatment exemption in the proposed rule, which addresses the majority of the concerns of Association members, since they already hold permits under the National Pollutant Discharge Elimination System (NPDES) program or its state equivalent and discharge to jurisdictional waters.

Remaining concerns highlighted in NACWA’s comments include the need for exemptions for stormwater systems, green infrastructure, and water reuse systems; a request for clarification of possible use of groundwater to establish jurisdictional connections; and, affirmation of the lead role played by the states in implementing any changes to the CWA. NACWA concurred with the recommendations of the 28 members of EPA’s Local Government Advisory Committee (LGAC) – convened last spring to provide recommendations on how the proposal intersects with the issues facing local officials – with regard to excluding manmade stormwater components. Their full recommendations can be found here .

In addition to submitting comments on behalf of the membership, NACWA also encouraged individual member agencies to submit comments on the draft rule to ensure the full consideration by EPA of their site-specific concerns. Any public agency members who submitted comments are encouraged to send a copy to the Association.

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

CDC Releases Interim Ebola Guidance for POTW Workers

The Center for Disease Control and Prevention (CDC) released its much-anticipated Interim Guidance for Managers and Workers Handling Untreated Sewage from Individuals with Ebola in the United States on November 20. The guidance explains that the Ebola virus is more fragile than more common viruses that cause diarrheal illnesses or hepatitis, and that the envelope covering the Ebola virus makes it more susceptible to environmental stresses and chemical disinfectants than non-enveloped viruses, such as poliovirus and norovirus. Although transmission of the virus occurs through direct contact with infected patients and their body fluid and there is currently no evidence of transmission via sewage, the guidance states that workers who come in contact with untreated sewage “could be at very low risk of exposure to Ebola virus.”

The interim guidance emphasizes the personal protective equipment (PPE) should be used, and basic hygiene practices followed, to protect workers from exposure to human pathogens, including the Ebola virus. Workers should receive training in the proper use of PPE, including how to remove it without contaminating themselves or others. The interim guidance recommends that workers handling untreated sewage use goggles or a face shield, a face mask, impermeable or fluid-resistant coveralls, waterproof gloves, and rubber boots. The guidance does not include any information about disinfection or zero-discharge of the waste from known Ebola patients in hospitals, although some hospitals treating Ebola patients have chosen to use these practices.

NACWA will continue to monitor recommendations related to the Ebola virus and other human pathogens and recommends that all member agencies review their PPE procedures and training.

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

Air Quality

EPA Releases Revised Biogenic Emissions Framework

EPA released its Revised Framework for Assessing Biogenic Carbon Dioxide (CO₂) Emissions from Stationary Sources on November 19. The first draft of the framework, released in 2011, assigned a “Biogenic Accounting Factor” (BAF) of zero to wastewater treatment, indicating that all of the CO2 emissions associated with wastewater treatment are part of the natural carbon cycle. NACWA supported  this BAF and the result that CO2 emissions from wastewater treatment processes, including combustion of biogas and biosolids, should not be regulated under the Clean Air Act.

The revised Framework recognizes that renewable energy generated from biogas and biosolids are not only carbon neutral, but result in a net decrease of CO2 emissions. EPA has requested that its Science Advisory Board (SAB) review the revised Framework. NACWA and its Air Quality Workgroup will also review the revised Framework in more detail and will provide comments to EPA and the SAB.

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

Court in Washington State Delivers Major Biosolids Victory

A court in Washington State issued a resounding legal victory  for land application of biosolids on November 4, endorsing arguments made by NACWA and others in the case to overturn a land application ban. In a unanimous published decision in State of Washington v. Wahkiakum County, the Washington Court of Appeals found that a local ban instituted by Wahkiakum County on the application of Class B biosolids was unconstitutional under state law and conflicted with the clear intent of the state legislature to support biosolids recycling.

The court ruled that the local ban failed under the three main analyses of conflict preemption. In particular, the court noted that the ban ran afoul of the clear legislative purpose under state law to encourage recycling of biosolids via land application, explaining that “if local governments have the power to ban land application of biosolids, land application….could be banned throughout the state, clearly thwarting the legislature’s purpose of recycling biosolids through land application.” Additional details and analysis of the decision are available on NACWA’s Litigation Tracking webpage.

NACWA joined with the Northwest Biosolids Management Association (NBMA) and other municipal clean water interests in the Northwest to file a brief  in the case encouraging the court to strike down the ban. NACWA applauds the court’s decision, which will provide strong legal precedent for utilities both within Washington State and nationwide to push back against similar local land application bans. The court’s unequivocal language about the danger and illegality of local bans thwarting state and federal laws designed to encourage land application is especially important and can be valuable to land application proponents across the country.

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

Climate and Resilience

President’s Task Force Releases Climate and Resilience Recommendations, Toolkit

On November 17, the President’s State, Local and Tribal Leaders Task Force presented their recommendations  to the Vice President on how the Federal Government can best respond to the needs of communities nationwide endeavoring to be more resilient. The Administration also announced a web-based Climate Resilience Toolkit that responds to clean water utility requests for a more central, intuitive way to access myriad Federal tools that can directly help utility managers conduct their operations and planning in the face of a changing climate.

Last year, as part of his Climate Action Plan, the President established the Task Force on Climate Preparedness and Resilience, comprised of Governors, Mayors, county executives and Tribal leaders from across the country who are experiencing climate change impacts ranging from more severe droughts and wildfires to record heat waves and damaging storms. NACWA member communities were widely represented on this Task Force.

The newly released Toolkit, which was called for in the President’s Climate Action Plan and developed with input from the Task Force, currently presents more than 20 case studies that initially focus on the topics of coastal flood risk and food resilience. The Administration will update the Toolkit to specifically address water systems resilience in the near future. One of the most useful features of the Toolkit for NACWA members is the Federal Resource Database that provides centralized access to federal sites for future climate projections, as well as freely available tools for accessing and analyzing climate data, generating visualizations, exploring climate projections, estimating hazards, and engaging stakeholders in resilience-building efforts.

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

EPA Releases Regulatory Agenda

Water continues to be one of EPA’s top priorities, as laid out in the Agency’s Regulatory Priorities published November 21 under the Unified Agenda of Federal Regulatory and Deregulatory Actions. Water is listed among the top six challenges for the nation, and EPA notes it is “a precious, limited resource”. In terms of water priorities, the Agency’s main goal areas remain unchanged from their current priorities – continuing to pursue finalization of the Waters of the United States (WOTUS) rule, steam effluent guidelines, and updating Water Quality Standards.

The joint Agency and U.S. Army Corps proposed WOTUS rule, aiming to clarify which waters are jurisdictional under the Clean Water Act, also remains on track to be finalized in spring 2016. After two delays, the comment deadline closed this month. NACWA submitted comments and will continue to track its progress as EPA reviews the almost 700,000 comments it received on the proposal.

The agency also highlights their work on the Water Quality Standards Regulation (WQS), which includes revisions of 1) Administrator's determination that new or revised WQS are necessary, 2) designated uses, 3) triennial review requirements, 4) antidegradation, 5) variances to water quality standards, and 6) compliance schedule authorizing provisions.

In addition to WOTUS and WQS, NACWA is actively tracking a number of other proposed water regulations on the Agency Rule List, most notably the NPDES e-Reporting rule (NACWA Advocacy Alert 13-12) and the Dental Amalgam Separator proposal (Advocacy Alert 14-24), which is currently open for comments. A supplemental notice for the e-Reporting rule is expected to be released in the first week of December. The Unified Agenda reports data on regulatory and deregulatory activities under development throughout the Federal Government. Over 3,000 regulations are planned as noted in this edition; 189 are considered major regulations. EPA has 130 proposed and final rules.

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 and Affordability

EPA Releases Financial Capability Framework, NACWA Hosts Meeting to Discuss Financial Capacity/Affordability Issues

After more than a year of drafting and revising based on comments from stakeholders, EPA distributed its final Financial Capability Framework for Municipal Clean Water Act Requirements  to the ten EPA regional offices on November 24. The final framework is not substantially different from the draft released in March. The 1997 guidance on financial capability, which has been the foundation of EPA’s work in this space, remains the starting point for all negotiations, but the new Framework stresses the important role the supplemental information a community may submit plays in determining the final outcome. It is unclear exactly how or if the Framework was modified to reflect the recommendations made in a recent report  by the Environmental Financial Advisory Board. That report recommended a number of significant changes to EPA’s current approach to evaluating financial capability, but based on an initial review, many of the Board’s more substantial comments were not reflected in the document. Nevertheless, the Framework should prove very useful for NACWA members dealing with these issues.

Now that the Framework has been released, NACWA will be working to ensure it is fully implemented by EPA’s regional offices and that the new Framework is fully incorporated into ongoing integrated planning efforts. In an effort to maintain an active dialogue on affordability issues, representatives from several public water and wastewater utilities, and staff from NACWA, the Association of Metropolitan Water Agencies (AMWA), the American Water Works Association (AWWA), the Water Environment Federation (WEF), and the National League of Cities (NLC), gathered November 4 at the NACWA office to discuss the issue of affordability. Dave Rager, Executive Director for the Northern Kentucky Sanitation District No. 1 in Ft. Wright, Kentucky, provided an overview of the work on affordability his utility is doing as it strives to meet its requirements under a federal consent decree. Rager and his team have been employing many of the new approaches to assessing the affordability of clean water spending that NACWA, WEF, AWWA and others have studied over the past several years, which are intended to provide a more refined picture than median household income.

Discussions during the meeting focused on what level of burden associated with clean water spending is considered ‘affordable’; ways to offset impacts on low income populations, including potential federal subsidy programs; opportunities for Congress to provide a more rational approach to addressing financial capability challenges; and other areas where the water sector could work together to advance this issue. NACWA is preparing a brief summary of the discussion at the November 4 meeting that will be made available to the membership soon. NACWA and the other water sector groups plan to discuss next steps with the goal of having some concrete direction and clear message by Water Week 2015.

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

Stormwater

New NACWA Resource Offers Guidance to Members Facing Legal Challenges to Stormwater Programs

NACWA is pleased to release its newest member resource Navigating Litigation Floodwaters: Legal Considerations for Funding Municipal Stormwater Programs. This white paper provides an analysis of the types of legal issues impacting stormwater funding programs. Feedback from the chairs of the Legal Affairs and Stormwater Management committees ensured that it included the most relevant information should NACWA members be faced with a stormwater legal challenge. The Association hopes to supplement this document with a more detailed, state-by-state analysis of the issue in the future. More information can be found in the November 17 Advocacy Alert 14-23.

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

As EPA Develops New Criterion for Viruses, NACWA Sees Major Potential Impacts for Clean Water Community

NACWA learned earlier this year that EPA is working to develop a water quality criterion for bacteriophage, a viral indicator with properties similar to many of the viruses the Agency is concerned about. NACWA met with key staff from EPA's Office of Science & Technology (OST) in June. OST officials briefed NACWA on the Agency’s 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 CWA programs. EPA's current timetable would have a proposed criterion ready for public comment in late 2015. There is still a significant lack of understanding of the efficacy of wastewater treatment plant disinfection processes on inactivating bacteriophage, but it is generally understood that bacteria are easier to disinfect than viruses. With little data comparing the performance of wastewater treatment disinfection processes at killing bacteria versus bacteriophage/viruses, it is hard to predict the extent of the changes that might be required to existing disinfection practices to meet the new criterion.

NACWA is recommending that clean water agencies currently evaluating changes to their disinfection practices closely follow the development of this new criterion. Additional information is available in Advocacy Alert 14-22.

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