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August 12, 2009

The U.S. Environmental Protection Agency (EPA or Agency) is seeking comments on its Draft Guidance on Preparing a Utility Analysis  (Draft Guidance), a 40-page document designed to assist utilities in preparing the ‘no feasible alternatives’ analysis EPA is now requiring before any peak flow blending scenario can be approved in a Clean Water Act permit.  This is the first time since its 2005 proposed peak flows policy that EPA has put into writing its interpretation that the bypass regulations apply to all peak wet weather flow diversions.  The issue of blending and how the bypass regulations are applied is a top priority for NACWA and the Association has active efforts on the regulatory, legal, and legislative fronts.

NACWA is currently reviewing the Draft Guidance and would like member input on the complexity of the analysis, estimates for how much it would cost to perform the no feasible alternatives analysis, and other concerns your utility may have with the Draft Guidance.  While the Draft Guidance was developed for use by communities with separate sanitary sewer systems, the document does discuss possible application to combined systems.  NACWA received an extension for sending comments to EPA and must now provide comments by August 14, 2009.  NACWA requests member input via email to This e-mail address is being protected from spambots. You need JavaScript enabled to view it by Wednesday, August 12, 2009.

Overview of the Draft Guidance

Intended to assist in implementing the draft 2005 peak flows policy that was never finalized, the Draft Guidance explains EPA’s current interpretation of the bypass regulations – that any diversion of wet weather flows around secondary treatment units whether directly discharged or recombined with secondary effluent, is considered a bypass.  If a clean water agency can demonstrate through the utility analysis that there are “no feasible alternatives” to the bypass, then it can be approved as an anticipated bypass in the facility’s permit.

The Draft Guidance provides additional instructions to utilities on what types of information to include when submitting a utility analysis.  Elements of the utility analysis include:

• Summary of the current treatment plant process and collection system; 
• Flow characterization, including information on the entire collection system;
• Evaluation of potential measures to reduce diversions, including operational and structural modifications to the treatment plant; and
• Assessment of the utility’s financial capability to implement the feasible alternatives.

The Draft Guidance also describes its applicability in the context of combined sewers and utility long-term control plans.

NACWA Seeks Member Input

While NACWA continues to take the advocacy lead in urging EPA to clarify its current position on blending and the bypass regulation in light of the fact that the Agency’s 2005 peak flows policy has not been finalized and the long-standing practice of blending has been broadly accepted by states and EPA for decades, it is vital that the Association review and comment on the Draft Guidance.  EPA’s regional offices and state water program managers are now reviewing the Draft Guidance and NACWA is working to develop comments on behalf of its members.

NACWA is asking members who blend to review the document and provide any input on the following:

• Specific comments on the scope of the information contained in the utility analysis;
• Concerns/comments on the guidance document, the level of detail it provides, and whether it provides sufficient information to conduct the analysis;
• For combined systems, how might this document impact implementation of your long-term control plan;
• Any estimates of cost or level of effort to conduct the analysis as contemplated by the guidance; and
• Other comments or concerns.

Again, NACWA is asking that members provide comments to NACWA via email to This e-mail address is being protected from spambots. You need JavaScript enabled to view it by August 12, 2009.

The Agency’s clear preference for eliminating diversions is continuing to cause major issues for several NACWA members who have installed parallel or in-line peak flow treatment, or are contemplating doing so, and now are being required to evaluate other alternatives that could render these investments useless.  NACWA plans to meet with the new Assistant Administrator for Water Peter Silva in the next few weeks and will raise this and other key clean water issues with him.