» Clean Water Current Archive

August 14, 2009

NACWA Submits Blending Comments; Criticizes EPA Process for Addressing Tough Issue

NACWA submitted comments  Aug. 13 on EPA’s Draft Guidance on Preparing a Utility Analysis (Draft Guidance),
a 40-page document designed to assist utilities in preparing the ‘no feasible alternatives’ analysis required by EPA before any peak flow blending scenario can be approved in a Clean Water Act permit.  The Draft Guidance relates to the implementation of the draft 2005 peak flows policy that was never made final and reportedly reflects the Agency’s “latest thinking” on blending and the existing bypass regulations as they apply to diversions around the secondary treatment process.  NACWA sought member input for its comments in the July 29 Regulatory Alert (RA 09-04).

In its comments, NACWA pointed out that it was inappropriate for EPA to issue guidance based on a new interpretation of the bypass regulations that has never been officially formalized and then to use that interpretation and guidance to implement a policy that has never been made final.  “The current approach EPA is taking, implementing a massive new wet weather program that seeks to drive collection system upgrades and require every drop of wastewater to receive biological treatment, through a process that side-steps the Administrative Procedures Act (APA) via an extremely stringent re-interpretation and reversal of a decades-old regulation simply is not appropriate or workable,” NACWA’s comments said. “EPA will remain on questionable legal ground if it continues to implement a proposed policy via draft guidance that imposes millions of dollars of costs on the Nation’s municipalities.  NACWA continues to believe that there is an opportunity to address collection system issues with a comprehensive national policy on sanitary sewer overflows, but to date EPA has been unwilling to confront that challenge head-on.”

EPA’s 2005 draft blending policy reflected an agreement reached by NACWA and the Natural Resources Defense Council (NRDC) after lengthy negotiations.  However, the policy got caught up in the White House Office of Management and Budget review process and was never made final.  NACWA said it was submitting its comments “with the understanding that a final policy statement from EPA Headquarters on the issue of blending and the application of the existing bypass regulations to diversions around the secondary treatment process will be issued before the nation’s wastewater utilities will be asked to conduct such analyses.”  NACWA will keep members apprised of discussions on this important matter as they move forward.

Court Allows NACWA to Intervene in Anacostia Riverkeeper TMDL Case

NACWA learned this week that its request to intervene in Anacostia Riverkeeper v. EPA was granted by the U.S. District Court for the District of Columbia, clearing the way for the clean water community to be represented in a significant case dealing with total maximum daily loads (TMDLs).  The court’s order comes in response to a Motion to Intervene  filed in June by NACWA and a municipal coalition of regional wastewater and stormwater groups.   In the case, activist groups challenged TMDLs established for sediments and suspended solids for the Anacostia River.  The challenge is the first since the 2006 court ruling in Friends of the Earth v. EPA that found all TMDLs for the District of Columbia must be expressed in daily terms.

In the Anacostia Riverkeeper case, NACWA and the municipal coalition plan to argue that restrictive daily loads are not necessary to control pollutants such as sediments and suspended solids, which only need to be regulated on a seasonal or annual basis.  The plaintiffs in the case disagree, arguing that restrictive daily loads are necessary even for pollutants that are better suited for seasonal or annual loadings.  While the District of Columbia Water and Sewer Authority, a member agency, asked NACWA to intervene in the case, the Association’s involvement will also represent the interests of clean water and stormwater agencies nationwide that could be affected by the outcome.  NACWA will file its first brief in the coming weeks.  More information can be found on the Litigation Tracking page of the Association’s website.

NACWA Member Agencies Have One More Week to Apply for Management Awards

NACWA members are reminded that the applications deadline for the 2009 Excellence in Management Recognition Program is next Friday, Aug. 21.  This recognition program honors NACWA member agencies who consistently demonstrate an overall efficiency and effectiveness in service delivery.  Based on the attributes of an effectively managed utility laid out in the paper, Findings and Recommendations for a Water Utility Sector Management Strategy, the Excellence in Management Recognition Program recognizes a utility’s focus and commitment to management improvement opportunities.  Proactive utility management initiatives that exhibit continuous improvements during the previous three-year period in such areas as product quality; customer satisfaction; employee and leadership development; operational optimization; financial viability; infrastructure stability; operational resiliency; community sustainability; water resource adequacy; and/or stakeholder understanding and support are eligible for recognition.  Learn more about this award program and download the application online at Excellence in Management Recognition Program.  Contact Kelly Brocato, director of membership development, at 202/833-1449 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it with any questions on this award program.

EPA Opens Online Enforcement Policy Dialogue

EPA has established an online forum to gather ideas from the public for the Agency’s proposed Clean Water Enforcement Action Plan, and NACWA members are encouraged to participate in the discussion process.  A central component of the forum is an online discussion page on EPA’s blog that allows the public to contribute ideas and thoughts on EPA’s efforts to improve the effectiveness and transparency of enforcement activities under the Clean Water Act.  This effort stems from a July 2 memo from EPA Administrator Lisa Jackson directing the Office of Enforcement and Compliance Assurance (OECA) to develop an action plan regarding the transparency and performance of clean water enforcement actions at the federal and state level.   While NACWA will be formally meeting with OECA soon to provide the Association’s perspective regarding the new Action Plan, individual NACWA members are encouraged to participate in EPA’s online discussion forum to provide comments EPA should consider while formulating the new plan.  The discussion forum will be open for comment until Aug. 28.

EPA Announces Modification to “De Minimis” Buy American Waiver

EPA published a notice  in the Aug. 10 Federal Register modifying its existing “de minimis” waiver from Buy American requirements for water and wastewater projects funded with American Recovery and Reinvestment Act (ARRA), or stimulus, funds.  The de minimis waiver was first announced in late May and applies to incidental components of ARRA-funded projects such as nuts, bolts, fasteners, gaskets, tubing, and other small items that make up less than five percent of the total project cost.  A more detailed explanation of the original waiver can be found in Legislative Alert (09-13).  Under the original wavier, only incidental components whose national origin was not easily identifiable before being purchased were covered under the de minimis exclusion.  The Aug. 10 revision eliminates the requirements regarding national origin, meaning that all incidental components will be exempt from Buy American requirements under the de minimis waiver, regardless of national origin.  This change should make it easier for clean water agencies to use the de minimis waiver on projects funded with stimulus money.  NACWA members who have received ARRA funds for projects at their utilities are encouraged to share their experiences on the Association’s website.