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To: Members & Affiliates; Regulatory Policy Committee
From: National Office
Date: December 17, 2009

The National Association of Clean Water Agencies (NACWA) is pleased to provide you with November/December 2009 Regulatory Update.  This Update provides a narrative summary of relevant regulatory issues and actions current to December 16, 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.

2009 Ends With a Flurry of Activity on Key Water Issues, Promising a Busy 2010

A very active year on the water front is coming to a close and the outlook for 2010 promises more of the same.  With significant attention from the federal government being placed on efforts in the Chesapeake Bay, NACWA and other key stakeholders now view the Bay program and the Agency’s strategy for meeting water quality goals as a potential model for watershed-wide efforts across the country.  Nutrient issues will be front and center in 2010, as a key component of the Chesapeake Bay debate and as a major source of impairment nationwide.  Legal developments in Florida and Wisconsin will set the tone for nutrient criteria development heading into 2010.  Office of Water Assistant Administrator Pete Silva is still being briefed on several key water issues, including peak flow blending and sanitary sewer overflow issues, and decisions are expected early in 2010 on the Office’s priority issues moving forward.  Much of EPA’s attention is now focused on stormwater, and NACWA expects significant activity from the Agency as it works to overhaul the municipal separate storm sewer system (MS4) regulations.  NACWA has remained focused on these stomrwater issues through its Wet Weather Advocacy Project and the creation of a new Stormwater Committee.  Implementation of the first national rule on greenhouse gases will begin in 2010, requiring industries and some clean water agencies to monitor and report their greenhouse gas emissions.  An important initiative for 2010, which is just getting underway, will focus on financial capability and the demands being placed on the nation’s clean water utilities.  NACWA is planning to meet with EPA policy and enforcement personnel soon after the first of the year to discuss a possible joint effort to provide more flexibility to consider financial impacts in the context of wet weather and other consent decree negotiations.  NACWA thanks its members for their support and technical input into the many issues that the Association has been advocating for on behalf of the clean water community.  2010 promises to be an even busier year and with your assistance we know we will be ready for all developments.

Top Stories

NACWA Continues Dialogue With EPA On Nutrients

Following up on earlier discussions, members of NACWA’s Water Quality Committee met with Ephraim King, director of the Office of Science and Technology (OST) in EPA’s Office of Water, on November 30 to learn more about the Agency’s plans to revise its water quality standards regulations and several other ongoing activities related to nutrients.  EPA is considering revisions to its water quality standards regulations to provide a mechanism for longer-term implementation of the controls necessary to meet a water quality goal.  The “restoration standard” would allow a 15-20 year implementation horizon during which meeting key milestones and achieving interim goals would be considered compliance with the water quality standard.  While this restoration standard could provide more flexibility under the Clean Water Act for addressing nutrient pollution, it may take some time before it is available to states.  This is because current challenges, including the EPA Science Advisory Board (SAB) review of OST’s guidance on using statistical approaches for deriving numeric nutrient criteria and EPA’s efforts to develop federal nutrient criteria in Florida (see below), are the Agency’s top priorities at the moment.

EPA Review of Draft SAB Report’s Recommendations on Nutrient Criteria
EPA continues to believe that using statistical approaches to derive water quality criteria, currently being reviewed by the EPA Science Advisory Board (SAB), have merit.  These statistical approaches are outlined in OST’s draft guidance, Empirical Approaches for Nutrient Criteria Derivation.  During the November 30 meeting with NACWA, King said OST would work, based on initial recommendations from the SAB, to improve its communications on how these approaches can be used with other tools for deriving criteria.  NACWA has raised a number of concerns in comments regarding the use of these statistical methods and pointed out that the SAB review of the draft report highlighted some of the same concerns – namely, a statistical correlation does not indicate a causal link between nutrient levels and ecological impacts.  King said that the scope of the SAB’s review was narrow, focused on the statistical approaches themselves, and that policy issues beyond the methods discussed by the SAB may not apply to OST’s efforts to finalize the guidance.  The degree to which OST relies on the SAB report to revise its guidance will be critical, and NACWA will meet again with EPA as it works to address the science board’s recommendations.  NACWA participated in a teleconference on December 3, during which the SAB panel discussed its draft report.  A final report is expected in February 2010.

EPA Continues Work on Florida Numeric Criteria
EPA, including its Region IV office and OST, are working to meet a mid-January 2010 deadline for developing draft numeric water quality criteria for rivers, lakes, and streams in Florida in response to a lawsuit by environmental activists alleging that EPA failed to protect the state’s waters from nutrient impairment.  The lawsuit further alleges that EPA made a nationwide determination in 1998 that all states needed numeric nutrient criteria but failed to execute its nondiscretionary duty to issue federal criteria where state criteria are inadequate.  EPA has argued that Florida is unique and issued a determination in January that numeric criteria were needed for that state.  However, the agency has continued to assert that the 1998 documents cited in the lawsuit did not constitute a nationwide determination, hoping to avoid lawsuits in other states.  On November 23, environmental groups also filed a notice of intent to sue EPA for failure to develop numeric nutrient criteria in Wisconsin, using the same arguments as the Florida case.  NACWA intends to review and comment on the Florida criteria when they are published next month.  The Association will also closely monitor developments in Wisconsin and review any lawsuit that may be filed.

Call to Action Report Does Not Represent Official EPA Position on Technology-Based Approach
The November 30 meeting also focused on a recent report, An Urgent Call to Action: Report of the State-EPA Nutrient Innovations Task Group, co-signed by Ephraim King, Jim Hanlon, director of EPA’s Office of Wastewater Management, and leaders from the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA), on the need for new and innovative actions to control nutrient pollution.  Central to the report is a list of recommended tools for making continued progress on nutrient pollution.  One of the top five recommendations was to modify the definition of secondary treatment to include removal requirements for nitrogen and phosphorus at the nation’s clean water agencies.  This position is the central argument in the Natural Resources Defense Council (NRDC) petition from 2007 and has been raised as a possible option by ASIWPCA in the past.  During the meeting, NACWA expressed concern that the Call to Action might be an articulation of EPA’s official position on modifying the definition of secondary treatment, but King stressed that the report did not represent the Agency’s position and was instead a report from an independent working group.  However, the existence of the report will no doubt continue to raise the possibility of a one-size-fits-all approach to nutrient control from clean water agencies.  NACWA will continue to meet with OST on these issues and will work over the next two months to track EPA’s reaction to the final SAB report.  In addition, the association will develop comments on EPA’s proposed numeric nutrient criteria for Florida.

NACWA Discusses Peak Flow Blending With EPA Staff

NACWA met with staff from the EPA Office of Wastewater Management on December 9 to discuss the status of the peak flow blending issue, and in particular, the Agency’s next steps for finalizing the 2005 proposed policy and the recently released draft utility analysis guidance.  EPA has been briefing Pete Silva, assistant administrator for water, to bring him up to speed on a suite of wet weather issues, including blending.  Silva is expected to decide early next year whether to finalize the 2005 proposed peak flows policy.  EPA staff indicated that they are currently focused on revising the draft utility analysis guidance to address the comments received on an earlier version. 

NACWA’s comments criticized the draft guidance and EPA’s efforts to implement the draft peak flows policy through the guidance before either was finalized.  EPA intends to release the utility analysis guidance again for a more formal round of comments sometime next year.  NACWA indicated during the meeting that its Board of Directors supports pursuing a final policy on blending based on the agreement crafted by NACWA and NRDC.  However, NACWA’s support would be conditioned on the understanding that EPA will in fact publish a final policy after working to address the many unresolved issues that have arisen since the policy was proposed in 2005.  Meanwhile, permits that EPA has objected to due to the handling of peak flows appear to be in a holding pattern until a more formal statement of EPA policy is issued.  NACWA will alert the membership to any new developments.

Biosolids

NACWA Weighs In With EPA Air Office On Data Request For Incineration

NACWA raised serious concerns in a November 17 letter over an information collection request (ICR) issued by EPA’s Office of Air Quality Programs and Standards (OAQPS) to nine clean water agencies across the country seeking data on emissions from sewage sludge incinerators (SSIs).  In the letter to the director of OAQPS, NACWA expressed concern over the cost to conduct the comprehensive emissions testing and the short timeframe in which EPA has given the utilities to complete the testing.  The data is being collected to assist EPA in its development of maximum achievable control technology (MACT) standards for SSIs under Section 129 of the Clean Air Act (CAA).  With costs exceeding $50,000 per incinerator for the testing, some of the selected utilities will have costs approaching $300,000.  NACWA’s letter noted these costs were not budgeted for and, in many cases, the expenditure of this money would require approvals and bidding processes that could make it impossible to meet the Agency’s February 17, 2010 deadline.

Also of major concern is the limited amount of data EPA is collecting.  By limiting its search to nine utilities, EPA is able to avoid the time-consuming process of seeking approval from the White House’s Office of Management and Budget (OMB), but the Agency will have data on only 20 incinerators to use when developing standards for the more than 230 SSIs in operation.  NACWA believes that collecting data from only 20 incinerators will not produce results that are scientifically valid and equitable.  NACWA participated in a December 1 conference call with EPA and the nine agencies to discuss possible time extensions and NACWA’s other concerns regarding the quantity of data being collected.

NACWA also met November 17 with Office of Water officials in its continuing effort to persuade the Agency not to regulate SSIs under Section 129 of the CAA.  EPA continues to develop a definition of non-hazardous solid waste to help it determine which combustion units should be regulated under Section 129 versus Section 112 of the CAA.  NACWA has argued that sewage sludge is not a solid waste and SSIs should be regulated under Section 112, not Section 129.

Climate Change

NACWA Provides Comments to Interagency Climate Change Adaptation Workgroup

NACWA attended an October 28 listening session and provided written comments on November 13 to the Interagency Water Resources and Climate Change Adaptation Workgroup that was formed by the White House Council on Environmental Quality (CEQ).  The workgroup includes the Office of Science and Technology Policy (OSTP), the National Oceanic and Atmospheric Administration (NOAA), and EPA, and is charged with developing national recommendations for climate change adaptation.  NACWA participated in the listening session for state, municipal, and water utility organizations, during which the workgroup asked for input on programs, policies, or other actions that federal agencies should pursue to support or guide climate change adaptation efforts.  The workgroup also asked for recommendations of effective models for coordination among government agencies and ideas for integrating adaptation planning with existing water resources planning.  Many groups, including NACWA, emphasized the need for better climate change data and models to help utilities and water resource managers plan appropriately for adaptation, as well as the need for more holistic watershed-based approaches to water quantity and quality issues.

The NACWA Climate Change Committee provided input for the Association’s written comments, which reiterated and expanded on the points made during the listening session.  The comments gave examples of work done by NACWA member agencies that can be used as models for cooperation among agencies and coordinated climate change adaptation planning.  The Orange County Sanitation District’s Ground Water Replenishment System required coordination with the Orange County Water District and state and regional agencies to establish wastewater reclamation for indirect potable use, and the King County Department of Natural Resources provides an example of how climate change adaptation can be incorporated into facility planning.  NACWA also cited the report it released in October with the Association of Metropolitan Water Agencies (AMWA), Confronting Climate Change: an Early Analysis of Water and Wastewater Adaptation Costs.  The report describes the climate change impacts on wastewater and drinking water utilities and estimates that necessary adaptations will cost between $448 and $944 billion through 2050.

The workgroup plans to make its findings public in the future but has not specified a target date for the release.  NACWA will convey the findings to its members when they are available.

NACWA Represented On Climate Ready Water Utilities Working Group

NACWA was well-represented at the first meeting of the National Drinking Water Advisory Council’s (NDWAC) Climate Ready Water Utilities Working Group on December 3 and 4.  Antonio Quintanilla, Assistant Director of Maintenance and Operations for the Metropolitan Water Reclamation District of Greater Chicago and vice chair of NACWA’s Climate Change Committee, is the NACWA-nominated member on the working group.  Representatives from four other NACWA member agencies are also part of the 21-member group.  The working group will provide recommendations to the full NDWAC on how to develop an effective program that will enable water and wastewater utilities to implement long-term plans that account for climate change impacts.  The recommendations will be developed over the next year during four more meetings of the working group.  An update on the group’s work will be provided at the February 2 meeting of NACWA’s Climate Change Committee during the Association’s Winter Conference in Austin, Texas, and at subsequent meetings.

Conferences & Meetings

NACWA’s Flow Web Seminar Series - New Insights On Critical Wet Weather Issues

Registration is now underway for NACWA’s new Flow Web Seminar Series – four innovative web seminars addressing some of the hottest topics in wet weather and stormwater management.  Designed as a central element of NACWA’s Wet Weather Advocacy Project (WWAP), the Flow Series will feature experts discussing topics of concern for public utilities charged with the management of wet weather flows:

• Stormwater Management: What Really Works? (January 13, 2010)
• Climate Change: It’s All About Water! (March 10, 2010) 
• Water Quality: The True Impact of Stormwater Runoff  (June 9, 2010) 
• Green Infrastructure:  What’s Legal? (September 8, 2010)

All web seminars will be held from 2:00-3:00 p.m. EST.  Register for all four seminars now for only $800 per location (a savings of $200 over individual seminar registration) and engage key members of your staff in these unique and important offerings.  More details are available on NACWA’s website.  Be sure to join us for these valuable web seminars – register today!

NACWA’s Winter Conference In Austin To Focus On Expanding Roles Of Utilities

Join us for NACWA’s 2010 Winter Conference: Transcending Tradition… The Expanding Roles & Relationships of the Clean Water Utility, February 2-5, 2010, in Austin, Texas.  The conference will examine the expanding roles of clean water agency leaders, while putting those duties into the context of challenges that utilities already face with an aging workforce, tough economic times, and growing capital program challenges.

Speakers will explore some of the drivers for change and provide information on how utility managers, already handling a full array of issues, have adapted and will continue to adapt.  Among the topics are how the Ten Attributes of Effective Utility Management can be infused into the clean water management culture; how to generate revenue from reusing wastes and creating new resources; how climate change and stormwater issues will affect the clean water community; and how the water sector is evaluating new models for utility management.  Online registration and a complete agenda are available on NACWA’s website, along with hotel information.  Be sure to call the Four Seasons Austin at 512/478-4500 by Friday, January 8, to make your reservations at the conference rate of $229/night.

Pretreatment and Pollution Prevention

NACWA Meets With EPA Pretreatment Officials On Dental Amalgam Law, Other Issues

NACWA met with EPA staff on November 9 to discuss a number of priority pretreatment issues.  Theresa Pfeifer, of Denver Metro Wastewater Reclamation District and chair of NACWA’s Pretreatment and Pollution Prevention Committee, and Martie Groome, of the Greensboro, N.C., Water Resources Department and vice chair of the committee, attended the meetings with Marcus Zobrist, the new Industrial Branch Chief of the Water Permits Division, and Jan Pickrel, National Pretreatment Coordinator.  NACWA expressed concern about the Michigan law that took effect in January, mandating the use of dental amalgam separators by dental offices but limiting a local pretreatment program’s ability to implement any additional requirements on dental office dischargers.  EPA attorneys are investigating options for addressing this law, which is in apparent violation of the Clean Water Act.  NACWA and EPA are both concerned that these types of laws could be enacted in other states and for other industries.

During the meeting, NACWA asked that EPA issue clarification to the states and EPA Regions about the appropriate use of the 1982 “50 POTW Study” data in calculating maximum allowable headworks loadings (MAHLs) when developing local limits for their pretreatment programs.  EPA supports this clarification, and NACWA will continue to work with EPA to ensure that it is released.  NACWA also discussed the Pretreatment Performance Measures that EPA has been developing over the last several years.  The stalled work on the Performance Measures is expected to accelerate in the next year.  A working group from NACWA’s Pretreatment Committee gave input to EPA on the Performance Measures last year, and EPA agreed that additional input from NACWA would be helpful as the Performance Measures are revised and finalized.  EPA also committed to attending the next NACWA National Pretreatment and Pollution Prevention Workshop, which will be held May 19-21 in Phoenix.

NACWA also met with staff from EPA’s Engineering & Analytical Support Branch of the Office of Science and Technology, which provided NACWA with written clarification regarding problems the Association had raised with laboratory procedures  resulting from regulatory changes to 40 CFR 136.  The questions related to preservation of grab samples, approval of cyanide testing methods, and the pH range required for hexavalent chrome testing.  EPA staff is interested in hearing about any other issues that utilities are having with laboratory methods, and the Pretreatment Committee will continue to collect questions for EPA. 

Security and Emergency Preparedness

Coordinating Council Meeting Focuses On Water Sector Security Priorities

The Water Sector Coordinating Council (WSCC) met on November 3 and 4 to discuss drinking water and wastewater security issues, including how utilities will continue to coordinate with each other, EPA, and the Department of Homeland Security once new chemical security legislation is enacted.  Current draft legislation would give EPA regulatory oversight of security at drinking water and wastewater facilities, and would require all wastewater facilities treating 2.5 mgd or greater to conduct vulnerability assessments, site security plans, and emergency response plans every five years.  The implications of the legislation on the relationships between utilities and the federal agencies are not clear at this time.  NACWA is represented on the council by Patricia Cleveland, operations manager, Northern Region, Trinity River Authority of Texas and a NACWA Board member, and Michael Gritzuk, director of the Pima County Regional Wastewater Reclamation Department.  The council was updated on the status of security legislation by water sector association staff.  The council also approved a new document, All-Hazard Consequence Management Planning for the Water Sector, which should be useful to utilities that are beginning or updating their emergency preparedness, response, and recovery planning.  NACWA will distribute the document to members when it is finalized.

Water Quality

EPA Water, Pesticide Offices Initiate Effort To Coordinate Aquatic Life Impact Assessments

NACWA has been closely watching the evolution of a new effort from EPA to better coordinate how it assesses aquatic life impacts under its pesticide and water programs.  While the water program is designed to protect aquatic life from negative impacts caused by toxic pollutants, including pesticides, and the pesticide program is designed to ensure that the approval of pesticides for use will not cause adverse environmental impacts, the two programs often evaluate different data and use different benchmarks for determining when a particular pesticide presents a threat to the nation’s waters.  NACWA has long advocated that EPA’s pesticide program needs to better evaluate aquatic impacts during the pesticide registration process, and the Association sees this development as a positive step.  EPA has released a scoping document describing the effort and is now planning a series of public stakeholder input sessions to seek input:  January 11, 2010 in Edison, New Jersey; January 12, 2010 in Atlanta, Georgia; January 14, 2010 in Chicago, Illinois; January 19, 2010 in Kansas City, Kansas; January 21, 2010 in Seattle, Washington; and January 22, 2010 in Oakland, California.  The scoping document and more details on the public meetings are available on EPA’s website.

NRC Committee Considers Recommendations For Mississippi  River Basin

EPA has established a committee under the National Research Council (NRC) to provide advice for specific actions regarding water quality improvements and nutrient controls for the Mississippi River watershed and the Gulf of Mexico.  The 10-member Committee on Clean Water Act Implementation Across the Mississippi River Basin includes Paul Freedman, of NACWA affiliate member LimnoTech, and Tracy Mehan, former Assistant Administrator for Water at EPA.  NACWA attended the open session of the committee meeting on December 14, which included discussions between the committee and representatives of EPA and other federal agencies.  Topics of discussion included EPA’s Nutrients Innovation Task Group and Gulf Hypoxia Task Force, data management and monitoring activities in the Mississippi River Basin, and the Chesapeake Bay Executive Order.  The committee discussed the similarities and differences between the Chesapeake Bay and the Mississippi River Basin, and the authority that states already have for regulating all nutrient sources.  The committee plans to release its first report next summer, with a second and final report released a year later.  NACWA will keep members informed about the activities and recommendations of the committee and their potential impacts on clean water agencies.