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Clean Water Current - May 8


 May 8, 2015

NACWA Instrumental Stormwater Legal Victory

The New York Court of Appeals provided a resounding legal win for the municipal stormwater community on May 5, issuing a ruling pdf button that dismissed challenges to the state general stormwater permit program and endorsing arguments pdf button Members Only made by NACWA and other municipal advocates in the case. The decision in Natural Resources Defense Council, et al. v. New York State Department of Environmental Conservation upholds the current approach used by New York (and, by extension, many other states) in implementing general stormwater permits under EPA’s Phase II stormwater regulations, but also sets the stage for future legal battles over the Phase II program.

In making its decision, the court agreed with NACWA and its partners in the case that municipal stormwater is unique from other regulated Clean Water Act (CWA) discharges in some important ways, including that:

  • Precipitation is naturally occurring, intermittent and variable and cannot be stopped;
  • Although municipalities operate sewer systems, stormwater contamination results from the often unforeseen or unpredictable choices of individual residents and businesses, as well as decisions made long ago about the design of roads, parking lots and buildings; and,
  • Because stormwater runoff flows into surface waters through tens of thousands of individual outfalls, each locality's contribution to the pollution of a particular river or lake is difficult to ascertain or allocate through numeric limitations.

The court further rejected challenges brought by environmental activists to the state general stormwater permit program, agreeing with NACWA and others that the general permit does not establish an “impermissible self-regulatory system,” nor does it violate the public participation requirements of the CWA.

The court acknowledged, however, that legal questions have been raised regarding whether EPA and states must provide greater regulatory and public review of Notices of Intent (NOIs) and Stormwater Management Programs (SWMPs) under EPA’s Phase II regulations. The court noted a split on this question among federal appellate courts, and highlighted a current case addressing the issue pending before the U.S. Court of Appeals for the Ninth Circuit. The New York court further suggested that the legal questions surrounding the Phase II program will ultimately have to be resolved by EPA and the federal courts – which could possibly include the U.S. Supreme Court. NACWA has already been in discussions with EPA about potential changes to the Phase II program as a result of the ongoing Ninth Circuit case, and will be closely involved in developments moving forward.

The Association joined with other clean water organizations late last year to support a brief pdf button Members Only in the New York litigation that was spearheaded by New York City. Additional information on the case is available on the Association’s Litigation Tracking Members Only page.

Association Weighs in to Support Microbead Legislation

NACWA sent a letter of support pdf button this week for H.R. 1321, the Microbead-Free Waters Act of 2015, which is cosponsored by Rep. Frank Pallone (D-NJ) and Rep. Fred Upton (R-MI). The proposed bill would amend the Federal Food, Drug & Cosmetic Act to ban the sale or distribution of products containing synthetic plastic microbeads as of January 1, 2018. Plastic microbeads have been found in the Great Lakes and in the stomachs of fish, and are too small to be removed by most typical wastewater treatment processes. The Association’s letter stated that “because plastic microbeads can be easily removed from products and natural alternatives substituted, eliminating plastic microbead pollution at its source, rather than relying on wastewater utilities to remove microbeads, is the best way to protect the water environment”

State legislation banning plastic microbeads has been passed in Illinois, New Jersey, and Colorado, and is being considered in several other states. Many manufacturers have also committed to removing microbeads voluntarily. A hearing about the bill has held on May 1 by the House Energy & Commerce Committee’s Subcommittee on Health, and NACWA will monitor the progress of the proposed legislation.

Conservation Program Funding Supported by NACWA, Others

NACWA joined 131 organizations to sign a letter pdf button urging appropriators to maintain full funding for conservation programs authorized by the Farm Bill and oppose the Administration’s FY 16 budget request for hundreds of millions of dollars in additional cuts. The President requested a 3 million acre cut to the Conservation Stewardship Program (CSP) and a 23 percent cut in funding for the Environmental Quality Incentives Program (EQIP). USDA’s conservation programs are critical to implementing cost-effective conservation practices including practices that help farmer better manage nutrients and avoid adverse water quality impacts from their operations. The CSP encourages producers to address resource concerns by providing payments based on conservation performance level and EQIP provides financial and technical assistance for farmers to implement conservation practices. These conservation programs have been particularly important in fostering innovative collaboration between clean water agencies and upstream agricultural partners to improve water quality. NACWA will continue to work with a wide range of stakeholders to protect these essential conservation programs.

EPA Requests Additional Information from NACWA Dental Amalgam Survey

EPA has requested that NACWA provide additional information from its Mercury & Dental Amalgam Separator Survey, which was summarized in the Association’s February 20 comments pdf button on the proposed Dental Amalgam Separator Rule pdf button. The Agency has asked for individual influent and effluent mercury concentration measurements from each facility that used Method 1631 to measure these concentrations. This data may help EPA calculate a higher mercury removal efficiency than the 90 percent efficiency from the 1982 POTW Study, which was the value used in calculating the benefits of the proposed rule. NACWA has asked the utilities that used Method 1631 to submit this data, if possible. Association members that did not complete the survey, but use Method 1631 for both influent and effluent mercury concentrations, are encouraged to submit this information to NACWA. Please contact This e-mail address is being protected from spambots. You need JavaScript enabled to view it for more details on the information needed

USDA Announces Second Round of RCPP Funding – July 8 Pre-proposal Deadline

The USDA announced $235 million available through its Regional Conservation Partnership Program (RCPP) for a second round of projects to improve the nation’s water quality, combat drought, enhance soil health, support wildlife habitat, and protect agricultural viability. Created by the 2014 Farm Bill, RCPP funds partnerships among private, public, government, nonprofit, and educational groups to implement innovative local conservation projects. The first round of RCPP awards funded $394 million for 115 high-impact projects and has already enrolled over 500,000 producers on over 400 million acres nationwide. Several NACWA Member Agencies are participating in the first round of RCPP projects including the City of Cedar Rapids; the Madison Metropolitan Sewage District; the City of Columbus, OH; and, the City of Baltimore (see press release). Pre-proposals for the second round of projects are due July 8, 2015 and application information can be found on the RCPP website. NACWA is a strong supporter of collaborating with the agricultural sector to achieve water quality gains and recently released a white paper pdf button highlighting nine examples of successful collaborations. Please contact This e-mail address is being protected from spambots. You need JavaScript enabled to view it , NACWA’s Senior Legislative Director, for more information about the program.

NACWA Takes Clean Water Message on the Road

New York utility managers received a briefing from NACWA this week as part of a panel at the New York Water Environment Association’s (NYWEA) Legislative and Regulatory Dialogue pdf button in Albany, New York. The Association joined the New York State Environmental Facilities Corporation and the Hudson Riverkeeper to discuss the financial implications of increasing regulation and water quality criteria on utilities around the country and national funding opportunities. NYWEA and New York utilities are particularly focused on CSO/SSO issues, nutrient TMDLs, and are collecting data on the impact of non-dispersibles on utility operations. NACWA is proud of a long-standing relationship with NYWEA – part of the Association’s ongoing state and regional outreach.

On Friday, NACWA convened 50 utility and municipal leaders from Kansas, Nebraska, Iowa, and Missouri for a Region 7 Clean Water Summit in Kansas City, Missouri. A debrief on national issues affecting clean water utilities was followed by open discussion on a range of issues including nutrient standards, stormwater programs, and impact of recent wet weather decisions. Association Board Members Terry Leeds, Director, Kansas City Water Services, MO; John O’Neil, General Manager, Johnson County Wastewater, KS; and, Steve Meyer, Director of Environmental Services, City of Springfield, MO, played an integral role in executing this robust meeting.

VoW Coalition Poll: 56% Support Rate Increased for Infrastructure

In conjunction with National Drinking Water Week, the Value of Water (VoW) Coalition, of which NACWA is a member, released the results of a poll that asked Americans about the importance of water in their lives. After explaining that the primary source of funding to modernize and repair water infrastructure is the revenue collected from customers, more than half of respondents (56%) agreed with the statement "water bills need to increase to repair and modernize water and wastewater infrastructure." To read more about The Value of Water Coalition or the poll please visit their website.


There Are Heroes Among Us

Not many people outside of the wastewater community know about pretreatment programs. Even in the community, pretreatment professionals do their jobs so well that they often seem to be below the radar. Pretreatment programs serve as the regulators of the industries that discharge to their utilities. According to EPA, there are about 1,600 POTWs with local pretreatment programs that regulate 23,000 significant industrial users. Meet these superheroes by reading more or better yet, subscribe to The Water Voice and never miss a post!



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