» Clean Water Current Archive

June 4, 2010

NACWA Meets with DOJ to Encourage Feds to Pay Stormwater Fees

Earlier today, NACWA and Member Agency, the District of Columbia Water & Sewer Authority (DC WASA), met with representatives from the Environmental & Natural Resources Division of the Department of Justice (DOJ).  The meeting took place in follow up to an April 30 letter from NACWA to Attorney General Eric Holder asking that DOJ carefully consider a recent decision by the Government Accountability Office (GAO) and the General Services Administration (GSA).  That decision asserted that federal facilities located in DC are exempt from paying impervious area charges to DC WASA, claiming such charges are an illegal tax on the federal government rather than an actual service fee.  NACWA has consistently held the position that stormwater charges are clearly fees for service – no different than fees for water and sewer service.

At the meeting, DC WASA explained the rationale for its impervious surface-based stormwater management fee, which is necessary to fund its long-term control plan.  NACWA urged DOJ to issue a statement making clear that all federal facilities must pay reasonable and appropriate stormwater management fees in accordance with Section 313 of the Clean Water Act.  DOJ representatives indicated that a timely decision would be made on this issue which would consider the specific statutes applicable to the DC WASA matter. The decision is also anticipated to include a recitation of factors that could provide guidance in other jurisdictions throughout the country.  The DC WASA bill will not be due until October of this year.

While the representatives from DOJ’s Environmental & Natural Resources Division were generally sympathetic to NACWA’s position, the Association must also meet with  DOJ’s Tax Division.  The Tax Division  will also have input into the ultimate decision and may not be as sympathetic..  NACWA continues to encourage members encountering similar problems to share them with the Association by contacting Thea Graybill, NACWA’s Government Affairs Assistant, at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .  We will keep the membership updated as this matter develops.

NACWA Takes Steps to Respond to EPA Notice on Sanitary Sewer and Blending Issues

EPA published a notice Tuesday seeking public input on several sanitary sewer collection system issues, including sanitary sewer overflows (SSOs), system operation and maintenance, and blending to help the Agency “shape any possible future regulatory proposals.”  NACWA has long-advocated for the development of a more holistic and integrated approach to addressing SSOs and managing collection systems, and believes the notice is an important step in the right direction.  NACWA Advocacy Alert 10-14, sent to the membership today, provides a brief summary of the EPA notice and the key issues on which the Agency is seeking comment and solicits input from the membership.  NACWA has scheduled a meeting with key EPA staff for June 17 to discuss the notice and to get more details on the Agency’s planned next steps for potential rulemaking and the overall timetable.  In addition, a small workgroup of NACWA members – that had previously been working on a petition to compel EPA to initiate a rulemaking effort on SSOs – is now tailoring its work to serve as the foundation for the Association’s comments on the notice.  NACWA plans to participate in the July 13 listening session on the notice in Washington, D.C., and will work to coordinate member participation in the other listening sessions planned for Seattle, Kansas City, and Atlanta.

NACWA Comments on DC Municipal Stormwater Permit

NACWA submitted comments today on the draft municipal separate stormwater sewer system (MS4) permit issued to the District of Columbia in April of 2010.  In its comments, NACWA continued to stress the importance of EPA addressing affordability and financial capability issues in a holistic manner in such permits.  The Association also urged EPA to provide support for the use of green infrastructure as a way to help control stormwater runoff.  NACWA supported the Agency’s requirements for new development or redevelopment that would ensure that a certain percentage of stormwater be retained on-site, provided that there are alternative options available due to site-specific constraints.  The Association is concerned, however, that the overall scope and the broad reach of many of the permit requirements will place significant financial hardships on the District, without offering sufficient clarity as to the water quality improvements that would be achieved.

NACWA was pleased to see that the retrofit program requirement allows for a lower performance standard based on site-specific conditions, and for off-site mitigation or payment-in-lieu options to meet the runoff management goal.  The Association believes, however, that EPA must revise the draft permit to allow a more gradual phasing-in of the retrofit and redevelopment requirements after more is known about their environmental and financial impacts.  In line with the Association’s long-standing position, NACWA stressed the importance of EPA removing any potential for numeric effluent limits for MS4 discharges from the permit because it would otherwise conflict with the requirements clearly expressed in Section 402(p) of the Clean Water Act.

EPA’s 2008 Clean Water Needs Survey Shows Massive and Growing Funding Need

EPA this week released its long-awaited 2008 Clean Watersheds Needs Survey Report. The Report provides the most up-to-date national estimate of how much money municipal clean water agencies will need to meet the requirements of the Clean Water Act (CWA).  The Report cites a staggering estimate of $298.1 billion in unmet clean water needs — a 17% increase over the 2004 assessment.  The estimate includes $187 billion for wastewater treatment and collection systems, $63 billion for combined sewer overflow corrections, and $42.3 billion for stormwater management.  The data in the Report were summarized from a comprehensive census survey of more than 34,000 wastewater facilities and water quality projects and represent capital needs for up to a 20-year period.

The estimates clearly signal the need for increased federal investment in water infrastructure through the annual appropriations process, a robust reauthorization of the State Revolving Fund (SRF) program, and the creation of a sustainable and dedicated clean water trust fund.  Given the magnitude of these needs and the current financial strain facing many municipalities – the Report helps make the case that EPA should consider additional flexibility in making CWA affordability determinations and move toward a more integrated affordability assessment process. The Report is available on EPA’s website.

U.S. Supreme Court Will Not Hear Biosolids Appeal in Kern County Case

On June 1, 2010, the U.S. Supreme Court denied the petition of NACWA Member Agencies the City of Los Angeles, Los Angeles County Sanitation District, and Orange County Sanitation District to review the Ninth Circuit Court of Appeals finding in the ongoing challenge to Kern County’s voter initiative banning the land application of biosolids.  In the lawsuit, City of L.A. v. Kern County, NACWA was joined by several of its public agency members, as well as the Water Environment Federation (WEF) and a number of regional biosolids associations, in filing two briefs supporting the petitioners.  The Supreme Court only hears a tiny fraction of the many meritorious appeals brought to the Court so this decision, while disappointing, was not surprising.  As a result, the ruling of the Ninth Circuit Court of Appeals that plaintiffs lacked “prudential standing” to assert a federal dormant Commerce Clause claim, because the biosolids applied at their farms in Kern County did not physically cross state lines, still stands.  It is NACWA’s continued assertion, as written in our amicus brief, that biosolids are articles in interstate commerce as defined by the federal courts and that clean water agencies need access to federal courts when confronted with local regulations that discriminate against biosolids by place of origin.

The Supreme Court’s decision should not prevent NACWA, its Member Agencies, or other interested parties from pursuing constitutional claims in federal court against discriminatory local restrictions on biosolids.  It does make clear, however, that those faced with the prospect of litigation, particularly in the Ninth Circuit, will need to frame their claims to show the impacts of land application on commerce, and ideally impacts or restrictions on out-of-state actors.  It is important to note that the Supreme Court, like the Ninth Circuit, did not reverse the merits of the District Court decision that discriminating against out-of-county biosolids violates the Commerce Clause.  The case will now return to federal District Court, where plaintiffs will ask the judge to retain jurisdiction over the remaining state law claims and reinstate his ruling that the recycling mandate of the California Integrated Waste Management Act (“CIWMA”) preempts the Kern biosolids ban.  We will continue to keep the membership apprised as new developments occur.

Register Today for NACWA’s Upcoming Web Seminars, Summer Conference

Join your clean water colleagues from across the country for unique opportunities to network with other utility leaders and innovators.  Whether engaging a web seminar online – or attending an upcoming conference onsite, NACWA continues to provide its members with timely and in-depth offerings on priority advocacy issues.  We invite you to register now for the following offerings:

• The third installment of NACWA’s Flow Series continues with Water Quality: The True Impact of Stormwater Runoff on June 9 from 2:00 – 3:00 pm Eastern.  The seminar features a presentation from water quality expert Dr. Erin Snyder, who will outline the major types of chemical contaminants associated with stormwater and how they impact water quality.  Kyle Dreyfuss-Wells, Manager of Environmental Programs at the Northeast Ohio Regional Sewer District and Chair of NACWA’s Stormwater Management Committee, will also be on-hand to provide a municipal perspective on Dr. Snyder’s remarks and discuss NACWA’s ongoing advocacy efforts to address EPA’s increasing aggressive regulatory efforts on stormwater.  Registration information for Flow Series seminars is available on NACWA’s website.
  
  

• With the stability of the economy still in question, municipalities continue to struggle with the cost of federal Clean Water Act (CWA) enforcement and regulatory actions.  Money Matters . . .  Making the Case for Affordability web seminar will provide a diverse array of perspectives on this important issue.  Mark your calendars for June 22 from 2:00 – 3:30 pm Eastern for this important and timely discussion! The web seminar will feature Loren Denton, Acting Branch Chief of the Municipal Enforcement Branch of the Office of Enforcement & Compliance Assurance’s Water Enforcement Division of EPA will provide remarks focusing on EPA’s efforts to clarify its approach to affordability – and how the Agency is working with NACWA and other key stakeholders to address affordability concerns in the consent decree context.  Case studies will also be provided by top utility officials from Atlanta, Georgia; Sanitation District 1 in Fort Wright, Ky.; and Akron, Ohio.  These case studies will feature the very real affordability problems that exist within the context of CWA compliance requirements and lessons learned from their negotiations and ongoing implementation efforts.  Register today!
  
  

• Join NACWA at its 2010 Summer Conference & 40th Anniversary Annual Meeting, July 20-23, 2010 at the Fairmont San Francisco and celebrate the many accomplishments of the Association and its public agency members on the occasion of its 40th anniversary!  The conference, Sustainable Resource Management – Lessons from Clean Water’s Past & Present, will explore the evolution of clean water – from the relative simplicity of water pollution control to the complex universe of sustainable resource management.  Front and center for many water managers is the complex relationship between energy production and water demands – the energy/water nexus.  As national policy continues to encourage domestic energy production and more renewable energy sources such as biofuels, the amount of water required to meet the Nation’s needs will continue to grow.  The agenda will examine these issues and how today’s sustainable approaches to water quality improvement provide a glimpse into the future of integrated water management.
  
  
  The Association’s year-long anniversary celebration with the theme, NACWA at 40  . . . A Watershed Moment, concludes in San Francisco with a special program and special events.  Recipients of NACWA’s National Environmental Achievement Agency Awards and Peak Performance Awards will be recognized, as will the inaugural class of honorees of the new NACWA Hall of Fame.  San Francisco will also serve as the backdrop for a special celebration of NACWA’s four decades of commitment to clean water, as well as the ever-popular facility tour and NACWA Open Golf Tournament.  Registration discounts are available now for multiple registrants from the same utility.  Contact the Fairmont San Francisco at 415.772.5000 to guarantee the special conference rate of $269 single/double.  A complete narrative agenda is available as is online registration by clicking here.  We look forward to seeing you next month in San Francisco!