Clean Water Current Archive

May 30, 2008

Appeals Court Upholds, Broadens Significant NACWA Victory in ELG Case

The U.S. Court of Appeals for the Ninth Circuit issued a revised opinion (PDF) May 23 in Our Children’s Earth Foundation (OCEF) v. EPA, affirming and broadening the court’s October 2007 ruling (PDF) that upheld EPA’s discretion in implementing key elements of the effluent limitation guidelines (ELG) program.  The revised opinion rejects the final challenge brought by activist groups to the EPA’s implementation of the ELG program and represents a resounding victory for NACWA on all of the issues raised in the appeal.

The previous Ninth Circuit opinion issued last year had granted EPA and the intervenors in the case, including NACWA, important victories on three of the four issues in the appeal, including a determination that EPA has discretion to set the timing of ELG plan publication and can identify potential new categories of pollution sources without necessarily developing new effluent guidelines for them.  The court did not take a position on the fourth issue in the appeal regarding whether EPA ignored the technology-based review for ELGs and instead remanded the issue to a lower court for further consideration.  EPA petitioned the court for a rehearing on this one matter, and, in an unusual move, the court granted the request and issued the revised May 23 opinion in which it reversed its previous position on the question of technology-based review.  The new ruling grants EPA and the intervenors a victory on this fourth issue, finding that EPA has the discretion to choose not to use a technology-based approach in reviewing ELGs.   The court has now agreed with NACWA’s position on all four of the issues raised in the appeal.

This decision marks a significant legal victory for NACWA, as the Association has been involved n the case since 2004 and has invested substantial resources from the Targeted Action Fund (TAF) to achieve this litigation success.   More information on this case and NACWA’s involvement can be found on the Litigation Tracking section of the Member Pipeline.

NACWA Meets with Ohio Senator’s Staff; Work Underway to Develop Affordability Bill

NACWA met this week with the staff of Sen. George Voinovich (R-Ohio) to discuss possible legislation to be developed and introduced this year that would establish a realistic approach for defining a utility’s financial capability regarding long-term control plans (LTCPs) to address combined sewer overflows (CSOs) and sanitary sewer overflow controls (SSOs) and ensuring that such control programs are truly affordable for the utility’s ratepayers.  Voinovich is a senior minority member of the Senate Environment & Public Works (EPW) Committee.  His desire to play a leadership role on the affordability front stems from several recent meetings with Ohio public agencies that are facing costs in the billions of dollars to control CSOs and SSOs, often in circumstances where there is little environmental benefit from these actions and in communities that are increasingly cash-strapped.  Voinovich’s staff discussed in detail NACWA’s work on the affordability issue.  The Association strongly urged them to fast-track introduction of a bill and offered its public agency members’ expertise in helping to craft this key legislation.  Voinovich’s staff said they are confident they can introduce a bipartisan bill this year and would rely significantly on NACWA’s input in drafting the legislation.

Senate Set to Debate Cap-and-Trade Climate Change Bill

The Senate will begin debating legislation next week that seeks to reduce greenhouse gas emissions through a national cap-and-trade program.  The bill that will be debated is a substitute amendment (PDF) introduced May 21 by Sens. Barbara Boxer (D-Calif.), chair of the Senate Environment and Public Works (EPW) Committee, Joe Lieberman (I-Conn.), and John Warner (R-Va.).  The substitute amendment replaces the version of the Climate Security Act of 2007 ( S. 2191) reported by the committee in December.  The bill seeks to reduce emissions by 70 percent from high-emitting industrial sources by 2050 through a cap-and-trade program that ratchets down emissions allowances starting in 2012.  Publicly owned treatment works (POTWs) are not covered, but the bill contains provisions that will likely be of interest to clean water agencies.   For example, the bill calls for allocating emission allowances to states and localities to study potential impacts of climate change on water resources and public infrastructure and to develop adaptation strategies.  NACWA has been analyzing the substitute amendment and is working with its Air Quality and Climate Change Committee leaders on a detailed Legislative Alert to be distributed to Association members early next week.

NACWA does not expect S. 2191 to become law this year because of a lack of movement on a House version of the bill, opposition from the White House and a planned filibuster from Sen. James Inhofe (R-Okla.).  However, the debate will serve to get members on the record early in an election year and lay the foundation for the next administration and Congress to use in addressing global climate change.

North to Alaska!  Join Your Colleagues for Our Summer Conference

NACWA is gearing up for its 2008 Summer Conference, The Future of Clean Water is Now! How Next Generation Issues are Impacting Utilities Today, July 15-18, at the Hilton Anchorage in Alaska.  There is no better place than Anchorage to share important information for clean water agency leaders on the vital need to move toward a watershed approach and the importance of adapting to the challenges posed by climate change.  More stringent criteria for bacteria, wet weather issues, and nutrient reduction technologies will also be important topics of discussion at the conference.  One of the highlights of NACWA’s Summer Conference is the Awards Ceremony and President’s Reception taking place on Wednesday, July 16.  During the ceremony and reception, NACWA will honor the 2008 agency recipients of the National Environmental Achievement Awards and Peak Performance Awards as well as a new slate of officers.

Mush!  Iditarod Champion to Make Special Appearance
Following the Awards Ceremony, Martin Buser, four-time winner of the Iditarod, will be sledding in to give a short presentation on his experiences.  The “Last Great Race on Earth” takes place annually in March, on a course that runs from Anchorage to Nome, with over 100 teams of 12 to 16 dogs and their musher covering more than 1,150 miles in 10 to 17 days in snow, ice, and negative temperatures.   The Buser family’s Happy Trails Kennels will also be sending along puppies, future Iditarod champions!

Register Today!
A detailed 2008 Summer Conference program, online registration and complete information on hotels are available on NACWA’s website.  The response to early promotion of the Summer Conference has been very strong – resulting in our room block at the Hilton Anchorage filling to capacity well in advance of the June 17 cut-off date.  Because this situation may change, please try to first secure a reservation at the Hilton Anchorage.  If they are unable to accommodate you, NACWA has arranged for a small block of rooms at the Anchorage Marriott Downtown, a short walk away.  We look forward to seeing you at the 2008 Summer Conference!