The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the July 2008 Regulatory Update.  This Update provides a narrative summary of relevant regulatory issues and actions current to July 9, 2008.  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 with any questions or information on the Update topics.

Top Stories

EPA, DHS Officials Ask House Panel to Close Water Security Gap, Extend CFATS

The House Energy and Commerce Subcommittee on Environment and Hazardous Materials heard testimony June 12 from senior officials at the U.S. Environmental Protection Agency (EPA) and the Department of Homeland Security (DHS) who pointed to what they said were gaps in security at wastewater and drinking water facilities.  Benjamin Grumbles, EPA assistant administrator for water, and Robert B. Stephan, assistant secretary for infrastructure protection at DHS, testified that water and wastewater utilities present a “significant homeland security vulnerability.”  The hearing focused on two bills addressing security at chemical plants (see the Legislative Update for more details), the Chemical Facility Anti-Terrorism Act of 2008 (H.R. 5577) and the Chemical Facilities Security Act of 2008 (H.R. 5533) .   The chemical facility anti-terrorism standards (CFATS), which currently exempt wastewater and drinking water facilities, will sunset in 2009 unless Congress passes legislation to make them permanent.  NACWA has consistently made the case that its public agency members should not be subject to the same requirements as private chemical manufacturers and believes that EPA should have primary jurisdiction over security at their facilities.

In his testimony, Grumbles said that “water and wastewater treatment facilities that are determined to be high-risk due to the presence of chemicals of interest should be regulated for security in a manner that is consistent with the CFATS risk and performance-based framework while also recognizing the unique public health and environmental requirements and responsibilities of such facilities.”  Stephan’s testimony was similar.  Grumbles went on to praise NACWA’s work in developing the Chlorine Gas Decision Tool as a user-friendly, voluntary measure that has helped utilities to examine alternatives to chlorine gas disinfection.  He also recognized the unique public health and environmental requirements facing public agencies when asked about the inherently safer technology (IST) provisions in H.R. 5577.

NACWA does not expect either of these bills to become law this year, and the political landscape for addressing these issues will be much different next year with a new Congress and new administration.  As such, NACWA will continue to press the case that drinking water and wastewater agencies are public servants whose goal is to guarantee their communities’ public health and environmental well-being and should not be part of the CFATS framework.

Air Quality and Climate Change

EPA Briefs NACWA on Rule for Mandatory Reporting of Greenhouse Gas Emissions

NACWA and leaders from its Air Quality & Climate Change Committee met with officials from EPA’s Climate Change Division June 25 to discuss the development of a mandatory reporting program for greenhouse gas (GHG) emissions.  Congress directed EPA in the fiscal year (FY) 2008 appropriations bill to use its existing Clean Air Act (CAA) authority to establish the reporting system.  The Agency is currently drafting regulations in an effort to meet the September 2008 deadline for proposing a rule, with the final due in June 2009.  While EPA will likely not meet this aggressive schedule, NACWA expects to see the proposal this fall.  EPA was careful to note during the meeting that the effort to develop the reporting rule is not connected to any of the current legislative proposals being considered by Congress and is not related to the separate Advanced Notice of Proposed Rulemaking (ANPRM) effort now underway to outline and seek comment on the consequences of regulating GHGs as a pollutant under the CAA, which is now at the Office of Management and Budget (OMB) and should be released soon.

In its instructions to EPA on developing the reporting rule, Congress allowed the Agency to decide which emissions from ‘upstream production and downstream sources’ to include in the rule and provided the Agency with discretion to define what threshold(s) to use for each category of emitter, above which reporting would be required.  Depending on which sources and thresholds EPA selects, clean water agencies could be subject to reporting requirements.  EPA is considering whether to require reporting by entity or by facility (e.g., all of a particular agency’s treatment facilities combined or each individual treatment plant) and whether to use an emission-based (i.e., greater than 10,000 tons of carbon dioxide (CO2) equivalents) or capacity-based (e.g., all power generators with capacity greater than 25 megawatts) threshold to determine which entities are required to report.  EPA indicated that they hope to capture as many of the current emissions as possible with the least amount of reporting.  To accomplish this goal, the Agency will try to focus on requiring reporting from those categories and emitters that are contributing significant quantities of GHGs to the atmosphere.  Early indications are that only very large clean water agencies, especially those with nutrient removal processes, and agencies with significant onsite energy generation capacity (e.g., reusing biogas) may be included, but it is too early to say for certain.  EPA is very interested in receiving comments on its proposed regulations and NACWA will notify the membership when the proposal is available for review.

EPA Releases Report on Climate Change Impacts on Sensitive Ecosystems

EPA released a new report in June that it says can help reduce the potential impact of climate change on estuaries, forests, wetlands, coral reefs, and other sensitive ecosystems.  The report, entitled Preliminary Review of Adaptation Options for Climate-Sensitive Ecosystems and Resources, identifies strategies to protect the environment as these changes occur.  To develop this assessment, scientists studied national parks, national forests, national wildlife refuges, wild and scenic rivers, national estuaries, and marine protected areas – all protected by the federal government.  The report uses the management goals set for each protected area to understand what strategies will increase the resilience of each ecosystem – in other words, enhance the level of change or disturbance that an ecosystem can absorb before it shifts to a different ecosystem.  Using these strategies managers can maintain the original goals set for these ecosystems under changing climatic conditions.

The report finds that climate change can increase the impact of traditional stressors (such as pollution or habitat destruction) on ecosystems, and that many existing best management practices to reduce these stressors can also be applied to reduce the impacts of climate change.   More information and a draft of the new report are available on EPA’s website.

Facility and Collection Systems

Senate Poised to Introduce Bill Requiring EPA to Revise its Financial Capability Guidance

NACWA has been working closely with staff of Sen. George Voinovich (R-Ohio), a senior minority member of the Senate Environment & Public Works (EPW) Committee, on draft legislation that would establish a realistic approach for defining a utility’s financial capability regarding long-term control plans (LTCPs) to address combined sewer overflows (CSOs) and sanitary sewer overflow (SSO) controls.  The legislation would require EPA to update its 1997 Combined Sewer Overflows — Guidance for Financial Capability Assessment and Schedule Development document — a move NACWA has been urging the Agency to take for some time.  NACWA met June 26 with staff from Sen. Voinovich’s office and Senator Lautenberg’s (D-N.J.) office in order to get the New Jersey Senator, who is chair of the EPW Committee’s Subcommittee on Transportation Safety, Infrastructure Security and Water Quality, to co-sponsor the legislation.  The meeting was positive and it appears that Sen. Lautenberg will cosponsor the bill with Sen. Voinovich and introduce it soon.  The bill would require EPA to revise the financial capability guidance based in large part on the more flexible and site-specific principles espoused by NACWA in its November 2007 NACWA Financial Capability Compilation (PDF).  NACWA will distribute the bill to the membership upon its introduction.

Security & Emergency Preparedness

EPA Security Publication Provides Water/Wastewater Basics for Law Enforcement Officials

EPA recently released a new security publication for law enforcement personnel providing basic overview information of water and wastewater security issues.  This document is only available to NACWA members who are logged into the NACWA website, but can be shared with local law enforcement officials to increase their awareness of the unique security challenges at water and wastewater utilities.

The Water Security and Emergency Preparedness Training Workbook for Law Enforcement recognizes that protection of the thousands of water sector facilities in the U.S. requires an integrated and coordinated approach among federal agencies, state and local governments, and the private sector.  Law enforcement provides a critical role in threat identification, protection, and investigation and should be integrated into the overall protection framework at the local, state, and federal levels.  The new workbook was developed to increase law enforcement personnel’s awareness of some of the threats and other security issues surrounding public drinking water supplies and wastewater facilities and to help facilitate integration and coordination at the local level.

Utility Management

Survey on Future Infrastructure Impacts – Deadline Extended to August 1

The University of Cincinnati, with funding from EPA’s Office of Research and Development, is conducting a national survey to identify and analyze the most important factors that may affect the performance of public and private water and wastewater systems in the U.S. over the next 50 years.  These factors include, among other things, climate change, population growth, economic pressures, funding shortfalls, institutional changes and regulatory requirements.  The deadline for completing the survey has been extended until August 1.

NACWA agreed to share this survey with its members for them to complete and will receive a summary of the findings later this year.  The survey, distributed via Member Update 08-09, is not a NACWA survey, but the Association reviewed the questions and believes that the responses may help to inform the dialogue on the nation’s water and wastewater infrastructure.  NACWA understands that the survey should take about 35-45 minutes to complete and responses will be kept anonymous.  The survey must be completed online, but responses can be saved so you can return to the survey at a later time.  Click here to complete the survey online.

NACWA Leads Effort to Launch New Resource for Effective Utility Management

Since the release of the Findings and Recommendations for a Water Utility Sector Management Strategy last year, NACWA, along with the other Effective Utility Management Collaborating Organizations – the American Public Works Association (APWA), American Water Works Association (AWWA), Association of Metropolitan Water Agencies (AMWA), National Association of Water Companies (NAWC), the Water Environment Federation (WEF) and EPA – have been working together to  develop tools aimed at helping utilities assess their current operations and evaluate new management strategies and goals. The tools now available include the Effective Utility Management Primer for Water and Wastewater Utilities (Primer) that provides water and wastewater utility managers with a better understanding of the ten attributes of effectively managed utilities and helps them assess their existing management programs.  The Primer was produced by water and wastewater utility leaders who also developed a series of suggested utility performance measures focused on the ten attributes to help in establishing a performance baseline and enable those utilities that choose to embrace one or more of the attributes to measure their progress.  In addition to the Primer and suggested measures, NACWA led the effort to develop a new online Resource Toolbox at www.waterEUM.org that contains links to resources and tools related to the ten attributes and the accompanying five keys to management success.  The Toolbox, which was launched on June 23, is organized to allow users to see all of the resources available for a particular attribute or key.  NACWA developed the initial website, but the collaborating organizations are committed to sharing management of the system going forward.  As more resources become available, the Toolbox will be regularly updated.

Water Quality

Long-Awaited Water Transfer Rule Released

EPA released its final rule on water transfers June 9, clarifying its position that transfers of natural, untreated water do not require a National Pollutant Discharge Elimination System (NPDES) permit.  The rule will provide important regulatory certainty for NACWA members by clarifying that NPDES permits are not required for transfers of water from one body to another, including routing water through tunnels, channels, or natural stream courses for public water supply, irrigation, power generation, flood control, and environmental restoration.  The rule will also provide a formal EPA position for courts to consider in ongoing and future litigation on water transfer issues, including the current case before the U.S. Court of Appeals for the Eleventh Circuit in which NACWA is involved.  As expected, the rule is already under fire from environmental activist groups and more litigation on the issue seems inevitable.  NACWA supported the draft version of the rule released in 2006, and met with officials at EPA, OMB, and other federal agencies to push for its finalization, in large part due to concerns with an already vast permit backlog.

Science Advisory Board Reviews White Paper on Criteria for Emerging Contaminants

EPA's Science Advisory Board (SAB) met June 30 and July 1 to discuss an Office of Water white paper outlining the technical issues likely to be encountered when deriving aquatic life criteria for emerging contaminants or contaminants of emerging concern (CECs).  The white paper uses as an example an endocrine disruptor to illustrate the complexities and special considerations that would arise in applying the Agency’s existing guidance on water quality criteria to CECs.  NACWA attended the public meeting and will provide the membership with a copy of the SAB’s comments and recommendations when they are available.  During the meeting, the SAB panel of experts reviewed a list of recommendations and findings in the white paper.  The SAB panel agreed with the white paper’s finding that most CECs are active at concentrations that are orders of magnitude lower than those causing acute lethality and, therefore, the derivation of an acute criterion in most cases would not be necessary.  The SAB panel cautioned, however, that there could be CECs where the mode of action may be sufficiently different (e.g., nanoparticles) and that an acute criteria may be needed in some cases.

Mixtures of CECs were a big issue raised by the SAB panel and will likely be noted in the panel’s findings as a deficiency in the white paper.  The SAB panel generally agreed with the rest of the white paper’s recommendations, though there were many suggestions for rewording certain elements and several caveats added throughout.   The panel was careful to note that CECs should not be handled like regular pollutants and that there should be a distinction between an indicator of exposure (such as the presence of vitellogenin in male fish) and evidence of an actual effect.  They noted the importance of using a weight of evidence approach when assessing impacts of CECs and that the federal agencies and EPA offices responsible for drug, pesticide, and other toxics regulation should be using their authority to collect some of the necessary information for deriving criteria that is currently lacking.  Many of the white paper’s recommendations, including the use of non-resident species testing and modifying the required taxonomic coverage, are a result of the lack of data on the impacts of these CECs.  EPA action on CECs will likely start with ethynylestradiol (EE2), which was used as the example in the white paper due to the extensive data available for EE2, though EPA staff were careful to note that this white paper is not a draft criterion document.

EPA Releases Action Plan to Reduce Nutrients to Mississippi River

The Mississippi River/Gulf of Mexico Watershed Nutrient Task Force last month released its final 2008 Action Plan for Reducing, Mitigating, and Controlling Hypoxia in the Northern Gulf of Mexico and Improving Water Quality in the Mississippi River Basin, building on the 2001 plan by incorporating emerging issues, innovative approaches, and the latest science, including findings from EPA’s SAB.  The Task Force, made up of state and federal officials but, notably, lacking any local wastewater representatives, leads efforts to promote and support nutrient management in the Mississippi/Atchafalaya River Basin and works to accelerate efforts to reduce the size of the hypoxic zone through building strong partnerships, developing voluntary and regulatory approaches, and increasing national awareness.  In comments last year on the SAB’s report on the hypoxia issue, NACWA raised concerns that the report and the Action Plan relied too heavily on point source controls.  Other stakeholders have called into question the science underlying the assumptions in the Action Plan, claiming that the studies overestimate the contribution of nutrients from point sources that actually reach the Gulf.  NACWA will continue to track the activities of the Task Force, especially as its efforts relate to the ongoing national dialogue on nutrient controls and also the work of NACWA’s Strategic Watershed Task Force.