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To: Members & Affiliates; Regulatory Policy Committee
From: National Office
Date: March 1, 2010

The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the February 2010 Regulatory Update.  This Update provides a narrative summary of relevant regulatory issues and actions current to February 26, 2010.  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 Stories

NACWA Meets with EPA Water Chief, Urges EPA Action on Blending

Representatives from NACWA member agencies and staff met February 18 with Assistant Administrator (AA) for Water Pete Silva to discuss the continuing issues surrounding peak flow blending and how blending should be addressed in Clean Water Act (CWA) permits.  As the AA for Water continues to be briefed on the issue, the water office is moving closer to deciding what its next steps will be.  Senior EPA staff at the meeting indicated that a series of options for proceeding on blending would be presented to Silva in the next 30-45 days.  The decision on next steps, however, will ultimately be made by EPA Administrator Lisa Jackson, whose office has already expressed an interest in the issue.  Although options will be discussed in the next month or so, NACWA anticipates the briefing for the Administrator and subsequent discussions could take more time given the long and complex history surrounding the blending issue.

The objective for the February 18 meeting was to demonstrate to EPA that there is significant confusion among the regions and states on how blending should be addressed in CWA permits and urge the Agency to clearly decide how it is going to address the issue.  While EPA did not provide the specific options they may consider for moving forward, finalizing the 2005 proposed peak flows policy is clearly among those options.  A consideration for EPA management will be whether the Agency should begin work on a broader sanitary sewer overflow (SSO) rule under which the blending issues could be included.  No action — in other words, not finalizing the policy and continuing with business as usual — continues to be another option, but this would likely not be the recommendation that EPA staff would provide to its management based on discussions at the meeting.  NACWA asked whether the White House's Office of Management and Budget (OMB) would again present a roadblock, as it did when the 2005 proposal was first released, if the Agency decides to finalize the 2005 proposed policy.  EPA indicated that they may not need to go through OMB again to finalize the policy. 

Significant Issues Identified for Resolution
NACWA noted during the meeting that there are significant unresolved issues regarding the 2005 proposal that would need to be addressed before it could be finalized.  Chief among those issues is how to handle parallel treatment systems.  NACWA Member Agency representatives provided their perspective on how parallel treatment systems, which achieve levels of treatment comparable to secondary treatment, are being objected to by EPA Region 7, citing the bypass regulations and seeking to require the agency to conduct a no feasible alternatives analysis.  The Association highlighted the fact that EPA's current position — that blending is a bypass — is a significant and new interpretation of the Agency's bypass regulations.  As recently as 2003, EPA indicated that it would not consider blending to be a bypass.  NACWA and its members in attendance made it clear that EPA’s actions have led to regions and states interpreting peak excess flow blending as a bypass, marking a significant change in policy that needs to be clearly articulated through a final policy document before it can be used in CWA permitting decisions.

NACWA will be following this very closely over the next few weeks and will report on any new developments.  The Association will not lend its support to moving forward with any policy on blending until unresolved issues are addressed and does not support EPA’s current approach of implementing a draft policy.  Should the Agency fail to explain its new interpretation in a clear and final policy statement, NACWA leaves all advocacy avenues open, including legal action, as it represents the interests of its members.

Conferences, Meetings, and Webinars

National Environmental Policy Forum Agenda and Registration Now Available Online

As the Federal government continues to place water quality issues high on its agenda, NACWA encourages its members to plan now to be in Washington, D.C. for the 2010 National Environmental Policy Forum, April 18-21 at the L’Enfant Plaza Hotel.  The Policy Forum will feature high level water quality discussions on watershed management, nutrient control, infrastructure funding, climate change and wet weather issues of concern to all NACWA members, especially in the current environment of increased enforcement and regulatory activity being pursued by the EPA.  This year’s Policy Forum will feature key Washington policymakers such as EPA Deputy Administrator Robert Perciasepe, United States Senator Ben Cardin (D-Md.), Congressman Mike Simpson (R-Idaho) and many others.  The popular Technical Roundtable Breakfast on Wednesday morning will provide an opportunity for members to meet directly with key personnel at EPA after being briefed by Office of Water leadership on the Agency’s regulatory priorities for the coming year.  An agenda, online registration, and travel information are available on NACWA’s Conferences & Professional Development webpage.

As part of this year’s Policy Forum, NACWA has set aside time for members to meet with their congressional delegations to raise issues of significance to their utility and to the clean water community as a whole.  We encourage you to make time for these critical meetings.  Should you need assistance securing appointments on Capitol Hill, please contact John Krohn, NACWA’s Manager of Legislative Affairs, at 202-833-4655 or at This e-mail address is being protected from spambots. You need JavaScript enabled to view it . We look forward to seeing you in Washington in April.

Registration Open for National Monitoring Conference

The National Water Quality Monitoring Council (NWQMC) will host its Seventh National Monitoring Conference, Monitoring from the Summit to the Sea, April 25-29 in Denver, Colorado.  The conference will focus on the many facets of water quality and quantity monitoring for improved understanding, protection, and restoration of our natural resources and communities.  It will also provide a unique forum for water practitioners from all backgrounds – including governmental organizations, volunteers, academia, watershed and environmental groups, and the private sector – to exchange information, develop skills, and foster collaboration and coordination.  USGS, EPA, NOAA, and state scientists and others will showcase new findings on the quality of the Nation’s estuaries, lakes, streams and groundwater, and highlight recent innovations and cutting-edge tools in water-quality monitoring, assessment, and reporting.  The conference location in Denver, Colorado will provide an ideal venue to showcase western water monitoring issues, including sustainable water management, effects of wildfires, and efforts to evaluate the effects of climate change on water quality, quantity, and aquatic ecosystems.

Critical Wet Weather Issues Examined in NACWA’s Flow Web Seminar Series

Registration is now underway for NACWA’s new Flow Web Seminar Series – innovative web seminars addressing some of the hottest topics in wet weather and stormwater management.  The first seminar, Stormwater Management: What Really Works?, was held on January 13.  Designed as a central element of NACWA’s Wet Weather Advocacy Project (WWAP), the remaining Flow Series web seminars will feature experts discussing topics of concern for public utilities charged with the management of wet weather flows:

• 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 pm Eastern Time.  Register for one or all of the seminars 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!

WaterISAC to Host Webinar on All-Hazard Consequence Management Plan

WaterISAC will host a webinar on the All-Hazard Consequence Management Planning for the Water Sector  (All-Hazard CMP), a document designed to help utilities with the practical aspects of emergency preparedness, response, and recovery planning.  The All-Hazard CMP was produced by a workgroup made up of drinking water and wastewater utilities, water sector associations, and state and federal water programs, and co-chaired by Patty Cleveland, NACWA Board member and Manager of Operations, Northern Region, for the Trinity River Authority of Texas.  The All-Hazard CMP includes:

• Customizable lists of preparedness, response, and recovery actions that will improve resiliency across all hazards;
• Consequence-specific lists of actions for potential hazards that are most relevant to drinking water and wastewater utilities;
• Incident-specific flow charts and checklists with links to downloadable and customizable versions online; and
• Information on how the National Incident Management System (NIMS) and the Incident Command System (ICS) are used in preparedness and during response and recovery.

The webinar will take place at 1:00 pm Eastern time on Thursday, March 11.  To register for this event, please use the Event Sign Up form on the News and Events section at www.waterisac.org.

EPA and WaterISAC to Offer Free ICS and NIMS Training Webinars

WaterISAC has teamed up with EPA to offer free webinar-based training specifically geared to the water sector on the Incident Command System (ICS) and National Incident Management System (NIMS).  All water utility employees who may be required to respond during an emergency must possess a minimum level of ICS and NIMS training.  In the last few years, EPA has sponsored dozens of ICS and NIMS classes for the water sector around the country.  Now, the content of those classes will be transformed into an interactive web-based experience.

The training, divided into four parts, will take place on April 2, 9, 23 and 30, with each session beginning at 1:00 pm Eastern Time. The first two webinars will cover the history, features, principles, and organizational structure of the ICS, and the second two webinars will cover NIMS and the National Response Framework (NRF).  Upon completion of the training, participants will be prepared to receive credit from the applicable on-line FEMA ICS/NIMS courses.  To register for the webinars, please use the Event Sign Up form on the News and Events section at www.waterisac.org.

Facilities and Collection Systems

NACWA and WEF Form Group to Study Problems of Flushable Wipes

In response to member concerns about “flushable” wipes that can cause clogging at pumps and treatment plants, NACWA is creating a working group to further examine the issue and to review flushability protocols developed by the nonwoven fabrics industry.  The group will review a guidance document  published by INDA, the U.S.-based association of the nonwoven fabrics industry, as well as a document  developed by the Procter & Gamble Company that was reviewed by a panel of independent experts selected by the Water Environment Research Foundation (WERF).  INDA has welcomed suggestions from NACWA on how the guidance document could be improved, and is willing to receive more input from clean water agencies about the problems created by wipes and potential solutions.  The group will also make recommendations for any future advocacy work by NACWA on this issue.  Members of NACWA’s Pretreatment and Pollution Prevention Committee and Facilities and Collection Systems Committee have volunteered to serve on the working group, and the Water Environment Federation (WEF) has agreed to work with NACWA on this effort and will also provide members for the group.  NACWA members who are interested in joining the group, or in sharing information about problems caused by flushable wipes at their utility, should contact Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or 202/296-9836.

NACWA Meets with EPA Policy, Enforcement Staff on Financial Capability

NACWA staff met February 22 with key EPA staff to discuss financial capability and potential enhancements to the Agency’s existing methodology for determining how much a community can afford during wet weather consent decree negotiations.  Representatives from the Office of Wastewater Management and the Water Enforcement Division of EPA’s Office of Enforcement and Compliance Assurance provided NACWA staff with their reactions to a set of guiding principles for potential changes to EPA methodology.  NACWA has urged EPA for several years to update is guidance on determining financial capability, but EPA has resisted a wholesale revision.  Instead, EPA expressed an interest in exploring more targeted amendments or enhancements that could be published separately, potentially in the form of questions and answers.  The chief concern NACWA raised during the meeting was that EPA’s current methodology for determining financial capability is simply a snapshot of the community’s economic condition.  Utility finances can change rapidly over a short period of time, as evidenced by the recent economic downturn, and committing to a spending regime for the 15- to 20-year lifetime of a consent decree may put utilities in a position where they are no longer able to fund the projects they have committed to.  Also important is the flexibility to prioritize projects within a decree and make changes if the community’s economic condition changes or other regulatory or operations challenges arise.  EPA indicated that they share our desire to do the most environmentally beneficial work first and that they are willing to work with us on developing targeted fixes to some of the issues raised.  NACWA staff will plan to meet with EPA again in about a month.   In the interim, both EPA and NACWA will be working to pull together more information on some potential targeted fixes.

Pretreatment and Pollution Prevention

NACWA Comments on Preliminary 2010 Effluent Guidelines Program Plan

NACWA submitted comments  on February 25 on EPA’s Preliminary 2010 Effluent Guidelines Program Plan  stating the Association’s support of the development of best management practices (BMPs) for the disposal of unused pharmaceuticals from health services facilities.  EPA began a detailed study of the Health Services category in 2007, and in 2008 NACWA provided comments  on a survey that the Agency planned to distribute to health care facilities to collect detailed information on the management and disposal practices for unused pharmaceuticals.  EPA has conducted significant outreach and data collection activities since 2007, including speaking or meeting with over 700 different people and conducting many site visits.  EPA believes it now has enough data to develop best practices for unused pharmaceutical management at health care facilities, and it does not need to conduct a survey to gather additional facility-specific data.  EPA plans to complete the best practices for inclusion in the final 2010 Plan.

In its comments, NACWA recommended that EPA make public the information that it has gathered, since this information may be useful to wastewater utilities and other entities involved with unused pharmaceutical disposal.  NACWA also urged that EPA work with other federal agencies to deliver a consistent message about pharmaceutical disposal.  The Food and Drug Administration recently released an online fact sheet containing recommendations for disposing of certain pharmaceuticals by flushing, and if the EPA-developed BMPs contain a different recommendation, the result will be confusion at health care facilities and in the public about the best method for disposing of unused pharmaceuticals.  As stated in the comment letter, “NACWA believes that flushing should not be presented as a viable alternative for disposing of any pharmaceuticals, but if flushing is determined to be necessary for certain drugs to avoid the possibility of accidental ingestion or illicit use, then all federal agencies should make this decision together and ensure that it is applied consistently.”  NACWA will keep members informed about EPA’s development of BMPs and any other news regarding this issue.

Stormwater

NACWA Discusses Stormwater Proposal with EPA

NACWA participated in an EPA “listening session” on January 28 on the Agency’s planned rulemaking process for a new post-construction stormwater rule.  The Association’s oral comments encouraged EPA to pursue innovative ideas in controlling stormwater flows, but also cautioned the Agency against developing an inflexible, “one-size-fits all” rule that will unfairly burden stormwater utilities.  NACWA reminded EPA officials of the current economic realities facing local governments across the country and warned against any new, far-reaching regulatory proposals for stormwater that would further burden them at a time when municipal budgets are already stretched to the breaking point.  NACWA made clear that it is interested in working with EPA to craft the new rule to ensure that the expertise and opinions of stormwater utilities are heard during the development process.  NACWA also encouraged EPA to include the use of green infrastructure as an option for communities to consider when developing stormwater management programs.

The January 28 event was the last of five “listening sessions” scheduled by EPA across the country to discuss a December 28, 2009 Federal Register notice  announcing the Agency’s intent to initiate a rulemaking process for a national stormwater rule.  The notice asks for stakeholders to submit information on existing stormwater control practices to aid the Agency in evaluating the effectiveness of current practices.   It also provides information on EPA’s five preliminary considerations for modifying or supplementing EPA’s stormwater regulations and requests stakeholder comment on these considerations.  NACWA will be filing written comments by the February 26 deadline.  Further information on EPA’s stormwater rulemaking effort is available on the EPA website.

Water Quality

EPA Proposes Nutrient Criteria for Florida; NACWA to Comment

On January 26, 2010, EPA proposed numeric nutrient criteria for Florida, marking the first time the federal government has acted to impose nutrient water quality criteria for a state.  The criteria and implementation approach outlined in the proposal will have direct impacts on Florida’s clean water agencies and will likely serve as a model for federal promulgation of nutrient criteria in other states.  Accordingly, NACWA is working to prepare comments that will highlight where EPA’s methodology for deriving the numeric criteria and its implementation approach are problematic, as well as elements of the proposal that could be beneficial or helpful on a national scale.

The proposal stems from an August 2009 consent decree between EPA and several environmental groups that commits EPA to proposing numeric nutrient standards for lakes and flowing waters in Florida by January 2010, and for Florida’s estuarine and coastal waters by January 2011.  The environmental groups had filed suit alleging that EPA failed to protect the state’s waters from nutrient impairment and to force federal promulgation of the criteria.  Environmental groups in Wisconsin have already expressed their intent to follow the same path to force federal promulgation of nutrient standards in that state, and NACWA believes that the success of the Florida legal challenge could lead other environmental groups around the country to do the same.

EPA’s proposed criteria for flowing waters in Florida, as expected, rely on the reference condition approach to nutrient criteria derivation.  The proposal notes that EPA was not able to establish a causal link between nutrient levels and in-stream impacts and instead used the reference condition/percentile approach.  Of more national significance, EPA is for the first time proposing to change the water quality criteria it is establishing for flowing waters to ensure that they are protective of downstream waters.  In most cases, the criteria are significantly more stringent as a result.  In addition, EPA is also proposing to use a new concept in Florida, a “restoration standard,” that NACWA was briefed on late last year.  EPA has described the restoration standard as an adaptive approach providing interim milestones to ensure continued improvement and allowing for a longer timeframe in which to meet the ultimate water quality goal.  This could help minimize the immediate impacts of the Florida criteria, but NACWA’s analysis is just getting underway.  Initial reactions are that establishing the restoration standard could require a significant amount of data and multiple use attainability analyses.  NACWA’s nutrient working group is reviewing the criteria and will develop comments on the proposal.

Science Board Expresses Concern Regarding EPA’s Nutrient Criteria Guidance

EPA’s Science Advisory Board (SAB) released a draft report  on February 17 concluding that EPA needs to make improvements to is draft Empirical Approaches for Nutrient Criteria Derivation for developing numeric nutrient criteria.  The Office of Water requested that the SAB review the draft and the SAB began its assessment last September.  The SAB expressed several concerns with the document, including the highly controversial conditional probability approach used to link nutrient levels to in-stream impacts.  The SAB questioned EPA’s use of the statistical approaches because they fail to establish a causal link between nutrient levels and effects on water quality.  NACWA had previously raised similar concerns about the statistical methods for deriving numeric nutrient criteria in comments  to the SAB last September.  NACWA remains concerned that EPA may limit modifications to technical changes and not address the broader policy issues relating to the proper use of these statistical approaches.  NACWA will closely monitor this as EPA works to make modifications to the draft based on the SAB’s findings.