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To: Members & Affiliates; Regulatory Policy Committee
From: National Office
Date: July 8, 2009

The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the July 2009 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to July 8, 2009. 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 or Cynthia Finley at 202/296-9836 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it with any questions or information on the Update topics.

Top Story

EPA Administrator Jackson Calls for Increased Water Quality Enforcement

In a July 2 memorandum, EPA Administrator Lisa Jackson called for improved water quality through transparency and effective enforcement of Clean Water Act requirements.  The memo, directed to Cynthia Giles, Assistant Administrator for EPA’s Office of Enforcement and Compliance Assurance (OECA), stated, “Despite the successes we have achieved over the years, water in the United States is not meeting public health and environmental goals.  Too many of our streams, lakes and rivers do not meet our water quality standards.”  The memo also states that “in many parts of the country, the level of significant non-compliance with permitting requirements is unacceptably high and the level of enforcement activity is unacceptably low.”

To address this situation, Jackson calls for increased transparency, stronger enforcement, and improved information technology.  Jackson recommends increasing transparency by making more and better information available on EPA’s website, including permit compliance and enforcement activities in each state.  Not only should EPA collect and disseminate this information, but the Agency should also update its information technology to provide analytical resources that make the information easily understood and useable by the public.  EPA needs to “raise the bar for clean water enforcement performance,” and cites wet weather pollution as one of the problems with the largest impact on water quality, requiring the highest priority for enforcement.  The memo includes instructions for Giles to report back to Jackson within 90 days with recommendations for steps to achieve these goals.

Although wet weather pollution has long been EPA’s highest enforcement priority, NACWA is concerned about Jackson’s request for stronger enforcement.  Jackson recommends close consultation between OECA and the EPA Regions and the states, including the Environmental Council of the States (ECOS) and the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA), but does not mention working with municipalities or other dischargers regulated by the Clean Water Act.  NACWA believes that a more cooperative approach between EPA and municipalities would be beneficial, and that new solutions to wet weather problems need to be explored, such as wet weather water quality standards, a comprehensive sanitary sewer overflow (SSO) rule, or a holistic watershed approach, such as the Association’s draft 21st Century Watershed Act.  NACWA will continue its advocacy for these potential solutions and keep members informed about progress, as well as about the development of recommendations resulting from Jackson’s memo.

Climate Change

NACWA Comments on EPA’s Proposed Endangerment Finding for Greenhouse Gases

NACWA submitted comments  on June 23 about EPA’s proposed endangerment findings for greenhouse gases, published in an April 24 Federal Register notice .  If finalized, the endangerment finding would allow regulation of greenhouse gases under the Clean Air Act.  NACWA previously expressed concerns about this type of regulation in its November 26, 2008 comments  to EPA on the Agency’s Advance Notice of Proposed Rulemaking:  Regulating Greenhouse Gas Emissions under the Clean Air Act.  NACWA reiterated these concerns in its endangerment finding comments, stating that “The Clean Air Act was meant to address pollutants on a local or regional basis with a focus on improving public health, and its framework cannot account for the global nature of greenhouse gas emissions and climate change.  Instead, a new framework for regulating greenhouse gases should be developed that recognizes the strong interrelationship between climate change and water resources.” 

NACWA also pointed out that potential greenhouse gas reduction requirements could conflict with implementation of existing Clean Air Act standards.  The endangerment findings state that the health effects of greenhouse gas emissions are indirect, but does not provide direction for how conflicts between health-based criteria pollutants and greenhouse gas emission reduction should be resolved.  NACWA recommended that EPA “make a clear distinction between health-based criteria pollutants and health effects caused indirectly by greenhouse gases, and the health-based objectives should take precedence.”  NACWA will continue to follow legislative and regulatory actions taken regarding greenhouse gases and climate change and their potential effects on clean water agencies.

EPA Announces Funding Program for Greenhouse Gas Reduction Projects

EPA has announced a $10 million Climate Showcase Communities grant program to help create “replicable models of sustainable community action that generate cost-effective and persistent greenhouse gas reductions while improving the environmental, economic, public health, or social conditions in a community.”  The program is intended to provide funding for local governments, including municipalities, local public authorities, and special districts, and utilities should consider applying for the grants.  EPA expects to award about 30 applicants with funding ranging from $100,000 to $500,000 per project.  Grant recipients will be required to meet a 50 percent cost-share, which can be in the form of cash or in-kind contributions, such as donated time, equipment, or expertise.   EPA will offer peer exchange, training, and technical support to grant recipients, and encourage replication across the country to promote the creation of sustainable climate management programs. The agency will accept proposals through July 22 and is expected to begin awarding grants in January 2010.  More information about the grants program is available on EPA’s website.

Facilities and Collection Systems

NACWA, Water Sector Partners Meet with EPA on Collection System Attributes

NACWA, the American Public Works Association (APWA), and the Water Environment Federation (WEF) met with staff from the EPA Office of Wastewater Management on June 30 to discuss ongoing efforts to develop a consistent set of management guidelines for sanitary sewer collection systems.  For the past year and a half, volunteers from NACWA and WEF (APWA joined the effort earlier this year) have been drafting the Core Attributes of Effectively Managed Wastewater Collection Systems, a list of 12 attributes that comprise the range of activities essential to maintaining a well-run collection system.  With clear guidance lacking on the national level, the associations hope the attributes will provide treatment utilities and satellite collection system managers with a concise and consistent framework for managing their collection infrastructure.  NACWA, APWA, and WEF plan to ask their respective boards to adopt the core attributes in the coming months, but there is interest in securing participation from EPA.  During the briefing, EPA noted the parallels between the collection system effort and the recent Effective Utility Management work and expressed an interest in potentially building on that successful collaboration with the new collection system attributes.  NACWA, APWA, and WEF plan to reach out to the environmental activist community next before seeking final Board approval later this year.

NACWA Continues Advocacy as Peak Flow Issues Expand

NACWA continues to aggressively engage with EPA regarding the Agency’s current stance on Clean Water Act permits that allow peak flow blending, including an expansion of EPA’s actions to certain permit holders in Region 10.  NACWA was aware of a handful of EPA interim objections to permits allowing blending in Region 7, but similar issues have now been raised in Region 10.  This expansion confirms that EPA’s recent actions are not isolated incidents but are instead part of a new Agency effort to handle peak flow blending more consistently nationwide.  Specifically, EPA is trying to apply the decades-old bypass regulation to the blending of peak flows by identifying any flows not receiving “secondary treatment” as a bypass, and requiring a no feasible alternatives analysis  before the blending can be included in a Clean Water Act permit.  In the past, a few EPA Regional offices had applied the bypass regulation in this manner, ultimately leading to a lawsuit and unsuccessful attempts by EPA Headquarters to issue national guidance.  It now appears that EPA Headquarters is making an attempt to apply this interpretation of the bypass regulation in all of its ten regions.  A more detailed explanation of EPA’s current approach and NACWA’s response is available in Regulatory Alert 09-03, which was distributed to members in June.  NACWA has communicated its concerns in a letter  to EPA Administrator Lisa Jackson and also plans to meet with Peter Silva, President Obama’s choice to be EPA’s assistant administrator for water, once he has been confirmed.  NACWA will continue to keep the membership updated on any developments.

Meetings and Conferences

Share Your Green Infrastructure Successes and Challenges at NACWA’s Summer Conference

If you are attending NACWA’s 2009 Summer Conference, be sure to attend the utility roundtable breakfast on Friday, July 17, at 7:30 am to discuss green infrastructure.  While interest in green infrastructure continues to increase in all sectors – clean water agencies, environmental groups, the public, and regulators – utilities still face regulatory and financial impediments to implementing green infrastructure solutions.  This roundtable discussion will allow utilities to discuss their experiences and learn about the success stories and challenges of other utilities.  The discussion will also help inform NACWA’s advocacy in the green infrastructure area, so please attend and share your experiences and opinions!  The conference, The New Regulatory Climate… Clean Water Agencies Prepare to Act, will be held July 14-17 at the InterContinental Milwaukee.  Registration for the conference is still available online on NACWA’s Conferences & Professional Development webpage, along with a complete agenda and travel information.

Security and Emergency Preparedness

Water Sector Coordinating Council to Host Cyber Security Training Workshops

The Water Sector Coordinating Council (WSCC) is hosting three one-day Cyber Security Training Workshops to improve the knowledge and skills of water sector utility employees who are responsible for control system security.  The Department of Homeland Security’s Control Systems Security Program will provide the training during these workshops.  The workshops are free, but registration is required.  The workshops will be held October 15 in Chicago, October 26 in San Antonio, and November 3 in Holliston, Mass. (near Boston).  Please register online as early as possible, since a minimum number of registrants will be required for each workshop to be held.  An informational flyer about the workshops is available at www.nacwa.org/cyberworkshop09.

Water and Wastewater Agency Response Network Webinar Scheduled

Please join WaterISAC and representatives from EPA and the California Water and Wastewater Agency Response Network (CalWARN) for an informative webinar about mutual aid and assistance in the water sector.
The water sector has been actively developing Water and Wastewater Agency Response Networks (WARNs) since 2006, and there are currently 43 WARNs covering 42 states and the national capital region.  Public and private drinking water and wastewater systems of any size can participate in a WARN.  Topics to be discussed during the webinar include the history of the WARN program; historical examples of WARN success stories; tools, training, and technical assistance available to support a more robust WARN; and the future of WARNs in an all-hazards security environment.  The webinar will take place on August 4 at 2:30 pm Eastern time, and advance registration is available online.

Water Quality

NACWA Discusses Nutrient Legal Analysis with Key EPA Staff

NACWA met with key EPA Office of Water and Office of General Counsel staff on June 23 to initiate a dialogue on the Association’s recently completed legal analysis  of EPA’s authority under the Clean Water Act to address nutrients as part of secondary treatment.  Through its Critical Issues Action Initiative, NACWA has been working to further develop the legal and technical arguments it first made in a February 2008 letter  to EPA urging the Agency to deny the Natural Resources Defense Council’s (NRDC) petition to add limits for nitrogen and phosphorus to the definition of secondary treatment.  EPA has not yet responded to the petition, but has been working to formulate a strategy and address those areas where it feels particularly vulnerable.  During the meeting, NACWA outlined some of the key findings from its legal analysis that detail where NRDC’s claims lack merit.  Since nutrient removal cannot be attained by application of secondary treatment technologies, and nutrient removal technologies were considered by Congress to be advanced wastewater treatment technologies, EPA has no authority under the Clean Water Act to require nutrient removal as part of the secondary treatment standard.  In addition, the measures advocated by NRDC are not technically justified and would not solve nutrient water quality problems because they would not address nonpoint sources.

NACWA plans to maintain the dialogue with EPA policy and legal staff over the next couple of months as the Agency continues to explore its options for responding to the petition.  Also during the meeting, NACWA provided a brief overview of the information in its soon-to-be-final technical issues paper, including an analysis of the costs associated with controlling nutrients at both point and nonpoint sources.  When this document is complete, it will be merged with the legal analysis and sent to members via an Alert.  At this point it is unclear whether or when NRDC may file suit against EPA on the issue.  Both the legal and technical issue papers were developed to better position NACWA to engage in the event of lawsuit.  Currently, the Association remains focused on its efforts to persuade EPA to formally deny the petition.

NACWA, Key Stakeholders Meet with EPA on Methylmercury Guidance

NACWA and key stakeholders met with EPA on June 17 to discuss the Agency’s ongoing review of its recently issued Guidance for Implementing the January 2001 Methylmercury Water Quality Criterion .  NACWA has closely tracked the Agency’s efforts to develop the Guidance and worked to ensure that it was ultimately finalized.  The Guidance’s focus on minimization plans, rather than strict permit limits, for de minimis point sources of mercury, such as POTWs, and the flexibility it allows when determining the appropriate water quality targets for methylmercury will allow for more reasonable implementation of the criterion and help to better focus control efforts on the major sources of mercury pollution.  During the meeting, EPA staff indicated that because the Guidance was finalized within the last 90 days of the Bush Administration, and because it dealt with mercury, the Guidance is currently under review by the Obama Administration.  EPA Headquarters must give each of its Regional Offices another opportunity to raise objections to the content of the Guidance.  The staff during the meeting indicated that at this time no major changes to the content of the Guidance were expected and that their review would be complete by mid-July.  EPA will then report their findings to the Administrator’s office where a final decision will be made regarding the Guidance.  Until a decision is made to close the review and let the document stand or to formally withdrawal the Guidance, the existing document remains in effect.  NACWA will update the membership when it learns the fate of the Guidance.

EPA Electronic Discharge Monitoring Report Tool Now Up and Running

On June 24 EPA announced the launch of a new, internet-based national reporting tool for Clean Water Act permittees to electronically sign and submit discharge monitoring reports to EPA through the Environmental Information Exchange Network.  The new Network Discharge Monitoring Report (NetDMR) electronic reporting tool is optional and allows for participants to continue mailing hard copy forms. The NetDMR tool is now available for use by EPA Regions I, III, VI, and the states of Utah and Louisiana.  Additional states, tribes, and territories also may adopt the NetDMR tool.  More information about the NetDMR tool is available on EPA’s website.