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April 10, 2015
NACWA Helps Secure Stormwater Legal Victory
A Maryland appellate court issued a decision on April 2 in a closely watched case involving the appropriate regulatory standards for municipal stormwater permits, giving NACWA and its municipal partners in the case an important legal win. The decision in Maryland Department of the Environment v. Anacostia Riverkeeper reaffirmed that the Clean Water Act’s (CWA) “maximum extent practicable” (MEP) standard for municipal separate storm sewer systems (MS4s) does not require strict compliance with water quality standards. NACWA joined with the Maryland Municipal Stormwater Association (MAMSA) in a municipal coalition to file a brief in the case, and much of the court’s analysis on the MEP issue echoes arguments from the brief.
The court found that the CWA’s MEP language “relieves municipal systems of the burden to meet specific water quality standards”. Additionally, it dismissed arguments from environmental activist groups in the case that the CWA requires technology-based effluent limitations for MS4s to achieve compliance with water quality standards. In making this finding, the court cited, and endorsed, the position of previous federal and state legal decisions that reached the same conclusion.
Although this decision only directly impacts MS4 permits in Maryland, it is an important win for the municipal stormwater community nationwide because it reaffirms that the CWA’s MEP standard does not require strict compliance with water quality standards – or the inclusion of numeric effluent limits. The concept of “strict compliance” has long been advanced by environmental activist groups to require specific effluent limits in MS4 permits. NACWA has sought to push back against these legal attempts wherever possible.
The Association’s involvement in this case is an example of the critical role NACWA plays as the leading national advocacy organization for municipal stormwater utilities. NACWA was pleased to partner with MAMSA on this effort to bring a national voice to a very important state issue that could have national implications, and always stands ready to work with other state and regional stormwater groups. The Association is increasing its efforts to provide a national advocacy platform for state and regional stormwater organizations. More information on this effort will be available in the next few weeks.
A federal appeals court issued a very positive ruling April 7 in litigation over nutrient regulation in the Mississippi River Basin (MRB), pushing back against efforts by environmental activist organizations for federal numeric nutrient criteria (NNC). The Fifth Circuit Court of Appeals decision in Gulf Restoration Network, et al. v. EPA found that EPA has significant discretion in how it responds to an activist group petition requesting federal NNC for the entire MRB.
NACWA participated in the case as a party at the trial court level to oppose the imposition of federal NNC. The decision will make it much more difficult for activist groups to pursue federal NNC, both within the MRB and elsewhere in the country. NACWA’s longstanding position – as expressed in this case through briefing – is that states must take the lead in developing water quality standards and criteria. This decision is consistent with that goal. Additional details and analysis of the decision are available in Advocacy Alert 15-05.
The ‘Clean Water Rule’, formerly referred to as ‘Waters of the United States’, or WOTUS, was sent to the Office of Management & Budget (OMB) for interagency review on April 3. In addition to the rebranding, EPA has made clear that the revised rule maintains the status of waters within Municipal Separate Storm Sewer Systems (MS4s) and encourages the use of green infrastructure (GI) and low-impact development. NACWA has advocated strongly that EPA not change how MS4s waters are treated under the Clean Water Act and that GI and other innovative wet weather management strategies not be discouraged. The Association is pleased that the Agency has clarified the rule language accordingly – and is optimistic that its other recommendations will be incorporated into the final rule. A final rule could be published by summer 2015, depending on the length of OMB review.
In comments filed by the Association on April 8, NACWA urged EPA to identify regulations and other policies that may be ineffective or excessively burdensome to clean water utilities. In March, EPA proposed a review of regulations under Executive Order (E.O.) 13563 and E.O. 13610 with a focus on “how the agency can promote regulatory modernization through business-process streamlining facilitated by improved technology” (see Advocacy Alert 15-03). To that end, NACWA encouraged the Agency to consider implications of the NPDES e-Reporting rule currently under development; to withdraw the proposed Effluent Limitations Guidelines and Standards for the Dental Category; and, to reconsider the Sewage Sludge Incineration Rule. Any thorough regulatory review effort must not only evaluate each regulation or policy on its own, but must also consider the inter-relationship among rules and policies and the need for prioritization. NACWA stressed that any ‘regulatory’ review process must be applied not only to rulemakings, but also to the array of policies that serve as de facto rules under different names, including guidance or criteria.
NACWA and representatives from the Water Environment Federation (WEF) and other water sector groups met with Ken Kopocis, Deputy Assistant Administrator for EPA’s Office of Water and other key staff Thursday during the sector’s bi-monthly conversation with the Agency. Water finance topped the agenda and EPA provided updates on its work relating to the new finance center and the WIFIA program. Involvement of the private sector was discussed and EPA noted that one of the three main focuses of the finance center will be on providing assistance and information to those communities interested in entering public-private partnerships.
Work to stand up the WIFIA program is going well, even if there is no funding to finance projects. EPA staff hope to present a framework for implementing the program to senior management later this spring. The Agency provided a range of updates on its criteria development efforts: a literature review on the bacteriophage criteria will be released next week; revisions to the human health criteria will be out in late May; and, a second round of public review on the selenium criteria revisions will begin in May. NACWA thanked the Agency for including $13 million for work on integrated planning in the Administration’s FY 2016 budget request. While Kopocis made it clear that Congress will have the final say on whether those funds are included in the Agency’s budget, he stressed that EPA remains committed to the concept of integrated planning – with or without the funding.
On Tuesday, EPA released the proposed Federal Implementation Plan (FIP) for the sewage sludge incinerator (SSI) rule (published in 2011). The FIP, when final, will be the implementation mechanism for the SSI emission limits in those states that chose not to develop a State Implementation Plan (SIP). NACWA and its SSI members are reviewing the proposed FIP – which will be open for public input for 45 days once it is published in the Federal Register – and plans to submit comments. The Association’s comments will include a list of implementation issues that SSI members have already identified in the hopes that EPA can address some of them through the FIP.
With Water Week 2015 now upon us, the time has come to think about ways to reach out to members of Congress and their staff. One thing is clear from a recent survey on preferred methods of communication for congressional staffers: there is absolutely no one-size-fits-all method. With services like Facebook and Twitter allowing elected officials to engage with constituents in their districts, share content, and get their message to a broader audience, why not add social media into your bag of tricks? Read on to find out more.
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