The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the November 2007 Regulatory Update.  This Update provides a narrative summary of relevant regulatory issues and actions current to November 8, 2007.  Please contact NACWA’s Chris Hornback at 202/833-9106 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it This e-mail address is being protected from spam bots, you need JavaScript enabled to view it or Cynthia Finley at 202/296-9836 or cfinley@nacwa.org This e-mail address is being protected from spam bots, you need JavaScript enabled to view it with any questions or information on the Update topics.

Top Story

NACWA’s Comments Result in Changes to Science Advisory Board’s Hypoxia Report

NACWA’s July 27 comments on a U.S. Environmental Protection Agency (EPA) Science Advisory Board (SAB) Panel report on the Gulf of Mexico hypoxia issue have resulted in major changes in the latest draft.   Recommendations that all major wastewater treatment plants upgrade to near limits of technology have been removed.  Instead, the report now recommends that tighter limits on nitrogen and phosphorus be considered, but not before conducting an analysis of the cost and feasibility of such controls, echoing NACWA’s comments.  EPA’s SAB will meet on November 16 to discuss the latest draft, which will ultimately be delivered to EPA Administrator Steven Johnson.  EPA’s own Office of Wastewater Management raised some of the same concerns with the draft report expressed by NACWA in its comments.

The SAB Panel’s key findings and recommendations specific to point sources now read:

Sewage treatment plants and industrial dischargers represent a more significant source of N and P in the MARB [Mississippi and Atchafalaya River Basin] than was originally identified in the Integrated Assessment. Tightening effluent limits on large sewage treatment plants may offer some of the most certain short-term and cost-effective opportunities for substantial nutrient reductions, particularly for P, but a full analysis of costs needs to be conducted in the context of nonpoint source reduction costs. Based on these findings, the SAB Panel offers the following recommendations.

• Tighter limits on N and P concentrations for major sewage treatment plants should be considered, following an analysis of cost and feasibility for a particular basin.
• A review of discharge data, including N and P loads, for industrial dischargers could identify possible industrial facilities to target for cost-effective reductions.

The full report is available on the SAB’s website .  At this time, NACWA does not plan to submit further comments on the report, but will continue to update members as this initiative progresses.

Conferences and Meetings

NACWA’s Annual Hot Topics Breakfast at WEFTEC a Success

Discussions at NACWA’s Hot Topics Breakfast during WEFTEC ‘07 in San Diego centered on nutrients and the various initiatives underway at EPA to address the impacts of excess nitrogen and phosphorus in the environment.  NACWA members raised the importance of controlling nonpoint sources of these nutrients and encouraged EPA not to undermine trading efforts by pursuing stringent, technology-based controls on wastewater treatment plants.  EPA officials, including Suzanne Rudzinski, Deputy Director of the Office of Science and Technology, Linda Boornazian, Director of the Water Permits Division, Office of Wastewater Management, Jim Hanlon, Director of the Office of Wastewater Management, and Craig Hooks, Director of the
Office of Wetlands, Oceans and Watersheds, provided insight into EPA’s efforts to encourage state development of numeric nutrient criteria, which will ultimately lead to more stringent permit limits for treatment plants, and the Agency’s Section 319 program for addressing nonpoint pollution.  The approximately 50 NACWA members attending the breakfast also heard the latest on the peak excess flow proposal, green infrastructure, the biosolids land application issue in Kern County, California, and NACWA’s legislative advocacy efforts.

Facility and Collection Systems

Sewer Overflows Again Top EPA Enforcement Priority List, States Express Concern

EPA released its enforcement priorities for fiscal years (FY) 2008-2010 last month, and municipal wet weather discharges, including stormwater and combined and sanitary sewer overflows, again top the Agency’s Clean Water Act priority list.  EPA selects priorities focusing on specific environmental problems, risks, or patterns of noncompliance and develops performance-based strategies for each priority to characterize the problem and set goals for addressing it.  With the last two priority setting cycles, EPA has sought comment from the public on a proposed list of priorities.  NACWA submitted comments on the proposed FY 2008-2010 priorities in February, noting that EPA’s insistence on targeting municipal wet weather issues for enforcement is likely to have negative consequences for the environment, forcing municipalities to spend disproportionate amounts of money seeking zero overflows rather than focusing on projects more beneficial to the watershed.  Municipal wet weather discharges, along with concentrated animal feeding operations, have been the top Clean Water Act priorities for the last several three-year cycles.

NACWA learned during an October 30 meeting with the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA) that this continued focus on wet weather discharges is also raising concerns with state regulators.  The continued federal focus on wet weather discharges, paired with a recently released policy statements on inspection frequencies and reporting requirements for wet weather, is adding to the already overwhelming demands on stretched state resources.

NACWA Testifies on Overflow Monitoring and Notification Bill

On October 16, NACWA Treasurer Kevin L. Shafer, executive director of the Milwaukee Metropolitan Sewerage District, testified on behalf of the Association during a House Transportation and Infrastructure Subcommittee on Water Resources and Environment hearing on sewer overflow notification issues.  The Raw Sewage Overflow Community Right to Know Act (H.R. 2452) was introduced in the House in May, and a Senate companion, the Sewage Overflow Right-To-Know Act of 2007 (S. 2080), was introduced in September.  Shafer’s testimony focused on the incredible amount of investment and work that Milwaukee has done to dramatically reduce overflows, enhance its monitoring capabilities, and inform the public quickly about overflows during the rare instances that they occur.   Testimony from all witnesses is available on the House T&I Committee’s website.

NACWA continues to work with congressional staff and representatives from American Rivers, who strongly support the bill, on language that will ensure strong protections for public health without putting an unreasonable burden on municipalities or unnecessarily alarming the public.  As Shafer stated in his testimony, “several NACWA members have voiced concern that H.R. 2452 could impose an overly broad monitoring regime, one that would prove too costly to municipalities already struggling to find ways to pay for clean water infrastructure improvements.”  NACWA believes that the vague language in both the House and Senate bills needs revision.  Although specific requirements are included for public notification within 24 hours of an overflow, there are no specific requirements for how overflow monitoring should be conducted by publicly owned treatment works (POTWs).  Also, no distinction is made between overflows that have the potential to cause harm to human health or the environment and those that do not.  NACWA will keep members informed about the progress of these overflow notification bills.

NACWA Begins Work on TAF Project to Address Satellite Community Relations

A new Targeted Action Fund (TAF) project is now underway to develop an issue paper exploring the complex challenges of working with satellite collection systems and detailing some of the new and innovative approaches that some communities are using to engage their satellite communities.  A workgroup of NACWA members will be working with a contractor to develop the issue paper, which will rely heavily on a series of detailed case studies from several communities that have had success in engaging their satellite communities.  The issue paper will focus on the issue of excess flow from satellite communities and how communities can work together in a collaborative manner to develop a mutually beneficial solution.  The issue paper will also explore some of the legal challenges associated with these interactions.  NACWA’s contractor will present a draft of the issue paper to the Facility and Collection Systems Committee when it meets in February during NACWA’s 2008 Winter Conference.

Pretreatment and Pollution Prevention

Appeals Court Sides with EPA and NACWA in Important Effluent Guidelines Case

NACWA won an important legal victory on October 29 when the U.S. Court of Appeals for the Ninth Circuit released its ruling in Our Children’s Earth Foundation (OCEF) v. EPA, essentially affirming EPA’s current implementation of the effluent limitation guidelines (ELG) program and dismissing challenges made by the environmental group.  NACWA intervened in the case in 2004 in support of EPA, arguing that the Agency was conducting the ELG program as intended by Congress.  After a district court ruled in EPA’s favor, OCEF appealed to the Ninth Circuit.

In its ruling, the Ninth Circuit upheld most of the lower court’s decision, finding in favor of EPA on numerous issues and remanding one issue to the district court.  Specifically, the appeals court determined that EPA has discretion to determine the timing of ELG plan publication and can identify potential new categories of pollution sources without necessarily developing new effluent guidelines for them.  In addition, ELGs are not required to be reopened and revised every five years.  OCEF had alleged that EPA “completely abandoned” a technology-based approach to reviewing existing ELGs in favor of a hazard-based (or water quality-based) approach.  The appeals court did not take a position on this issue and instead remanded the issue to the district court for further consideration.  The Ninth Circuit suggested that the lower court could still reaffirm its original decision if it finds that EPA actually reviewed the availability of new technologies in addition to conducting hazard-based reviews.  NACWA will continue to track the case while it is on remand, and will report on any additional developments.

EPA Releases Preliminary Effluent Guidelines Plan; NACWA Seeks Member Input

The Preliminary 2008 Effluent Guidelines Program Plan was released by EPA in the October 30 Federal Register.  The plan provides information and seeks comments about EPA’s 2007 annual reviews of effluent limitation guidelines (ELGs) and pretreatment standards for both existing and non-regulated categories, as well as its preliminary plan for 2008.

The Preliminary Plan contains updates on the current detailed studies of four existing categories:  Steam Electric Power Generating, Coal Mining, Oil and Gas Extraction, and Hospitals.  The Hospitals category is included in a broader, detailed study on the Health Services Industry, which is a proposed new category that also includes dental clinics, long-term care facilities, veterinary clinics, and medical laboratories and diagnostic centers.  EPA lists specific questions that it is trying to answer for each of these categories and invites comments and information about these issues.  EPA has identified Centralized Waste Treatment and Waste Combustors as two categories that require preliminary category reviews in 2008.  For the categories identified in 2006, EPA will also continue to review the Ore Mining and Dressing category, but is terminating study on the Textile Mills category.  

For the detailed study of the Health Services Industry, EPA is focusing on mercury discharges from dental facilities and disposal of unused pharmaceuticals from all facilities in the sector.  EPA is seeking information on the extent and effectiveness of best management practices for both dental mercury and unused pharmaceutical disposal into wastewater.  EPA is also looking for information about the cost and effectiveness of amalgam separators use, and the barriers to reducing or eliminating pharmaceutical disposal to POTWs.  NACWA is concerned about the implications of adding the Health Services Industry to the pretreatment program, since it could potentially bring about 475,000 new dischargers into the pretreatment program.  Dental clinics alone account for approximately 100,000 of these facilities.  NACWA plans to submit comments on the Preliminary Plan and will be issuing a Regulatory Alert this week summarizing the plan and seeking member input.  Comments are due to EPA by December 31, 2007.

Utility Management

2007 NACWA Index Survey Now Underway

NACWA public agency members will soon be receiving their 2007 NACWA Index survey in the mail via Member Update 07-19. The one-page Index survey requests the average annual single-family residential sewer service charge and service population of each NACWA utility respondent.  From these values, NACWA produces a population-weighted nationwide average annual single-family residential service charge, which will be distributed to the membership in March 2008.  The results include a useful chart that compares national service charge changes on an annual basis since the mid 1980s and information on service charges according to geographic region.   

Please watch your mail for the Index survey and take a moment to complete the questionnaire either online or via the individualized hard copy survey form accompanying the Member Update.

Water Quality

NACWA Releases Strategic Watershed Task Force Report via Congressional Testimony

On October 18, the 35th anniversary of the Clean Water Act, NACWA released the report of its Strategic Watershed Task Force, Recommendations for a Viable and Vital 21st Century Clean Water Policy .  The report describes the water quality benefits that could be realized through a comprehensive watershed approach as well as the obstacles that currently prevent the widespread implementation of this approach.  The Task Force recommended short-term improvements that can be made within the basis of existing laws and regulations, while also recommending that in the long-term, a new water quality framework be established with a 21st Century Watershed Act.  For more information about the report and the work of the Task Force, see Member Update MU 07-18.

The report was officially released during a hearing before the full Transportation & Infrastructure (T&I) Committee titled The 35th Anniversary of the Clean Water Act: Successes and Future Challenges.  NACWA President Christopher M. Westhoff, assistant city attorney and public works general counsel for the City of Los Angeles, testified on behalf of the Association during this hearing.  Westhoff focused on the recommendations contained in the Strategic Watershed Task Force report, stating that “the watershed approach has gained traction in light of the clean water funding shortfall as a way to prioritize needs and ensure the greatest return on available investment.” At the hearing, Chairman of the T&I Committee Jim Oberstar (D—Minn.) held up the report and called it a “splendid document and well-written.”  Testimony from the other witnesses is available on the T&I Committee’s website .

NACWA Tracking Nutrient-Related Activities on the Mississippi River

The EPA Science Advisory Board panel on the Gulf of Mexico hypoxic zone (see related story) is just one of many efforts underway seeking to address nutrient levels in the Mississippi River and their impacts on the Gulf.  The Mississippi River/Gulf of Mexico Watershed Nutrient Task Force had its fifteenth meeting on October 29, 2007, in Cincinnati to discuss its ongoing work to assess progress toward reducing the hypoxic zone in the Gulf and two recently released reports, including the SAB panel’s report.  The task force, consisting of federal and state members including Ben Grumbles, Assistant Administrator for Water, was established to coordinate and support nutrient management and hypoxia-related activities in the Mississippi River and Gulf of Mexico watersheds.  At its meeting, the task force approved draft revisions to the Agency’s 2001 Action Plan on the hypoxia problem, and authorized release of the draft for public comment.  The final draft will be posted on the task force website at http://www.epa.gov/msbasin/ by November 9, 2007, and the comment period will be open until January 4, 2008.  NACWA will review the draft and likely comment on it, and members who submit comments of their own are asked to send a copy to NACWA.

The task force also considered the latest draft of the SAB panel’s report and a new report from the National Research Council, Mississippi River Water Quality and the Clean Water Act, which finds that EPA has failed to used its authority under the Clean Water Act to adequately coordinate and oversee state activities along the Mississippi and ensure progress toward the act’s goals.  It recommends that EPA take a more aggressive leadership role in implementing the Clean Water Act in the Mississippi River basin.  NACWA will continue to track all of these nutrient-related activities.