NACWA Reviews Outline of Draft Affordability Bill

NACWA met May 29 with staff from Sen. George Voinovich’s (R-Ohio) office to discuss NACWA’s previous work on financial capability and affordability issues.  During the meeting, the Senator’s staff expressed an interest in developing legislation to be introduced this year 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 controls (SSOs) and ensuring that such control programs are truly affordable for the utility’s customers and households.  NACWA is reviewing a draft outline of what the bill may contain and will continue to work with the Senator’s staff as they move forward.  Voinovich is a senior minority member of the Senate Environment & Public Works (EPW) Committee.  His desire to play a leadership role on the affordability front stems from several recent meetings with Ohio public agencies that are facing costs in the billions of dollars to control CSOs and SSOs, often in circumstances where there is little environmental benefit from these actions and in communities that are increasingly cash-strapped.  Voinovich’s staff said they are confident they can introduce a bipartisan bill this year and would rely significantly on NACWA’s leaders on affordability issues in drafting the legislation.

Pretreatment and Pollution Prevention

Appeals Court Upholds, Broadens Significant NACWA Victory in ELG Case

The U.S. Court of Appeals for the Ninth Circuit issued a revised opinion May 23 in Our Children’s Earth Foundation v. EPA, affirming and broadening the court’s October 2007 ruling that upheld EPA’s discretion in implementing key elements of the effluent limitation guidelines (ELG) program.  The revised opinion rejects the final challenge brought by activist groups to the EPA’s implementation of the ELG program.

The previous Ninth Circuit opinion issued last year had granted EPA and the intervenors in the case, including NACWA, important victories on three of the four issues in the appeal, including a determination that EPA has discretion to set the timing of ELG plan publication and can identify potential new categories of pollution sources without necessarily developing new effluent guidelines for them.  The court did not take a position on the fourth issue in the appeal regarding whether EPA ignored the technology-based review for ELGs and instead remanded the issue to a lower court for further consideration.  EPA petitioned the court for a rehearing on this one matter and, in an unusual move, the court granted the request and issued the revised May 23 opinion in which it reversed its previous position on the question of technology-based review.  The new ruling grants EPA and the intervenors a favorable ruling on this fourth issue, finding that EPA has the discretion to choose not to use a technology-based approach in reviewing ELGs.   The court has now agreed with NACWA’s position on all four of the issues raised in the appeal.

NACWA has been involved in the case since 2004 and has invested substantial resources from the Targeted Action Fund (TAF) to achieve this litigation success.   More information on this case and NACWA’s involvement can be found on the Litigation Tracking section of the Member Pipeline.

Utility Management

Financial Survey Responses Urgently Needed!

Members are asked to submit their 2008 Financial Survey as soon as possible.  NACWA has not received the necessary number of responses to date.  NACWA needs additional responses to ensure the survey is representative of the membership and the broader clean water community.  If you are still interested in completing the survey or if you are not sure whether your agency completed its survey, please contact the national office ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it ) for more information.

Survey on Future Infrastructure Impacts – NACWA Member Participation Requested

The University of Cincinnati, with funding from the 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.  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.  The survey will remain open until June 30, 2008.  Click here to complete the survey online.

Water Quality

NACWA, Municipal Partners Meet with Wastewater Office Officials

NACWA and its partner municipal organizations, including WEF, the American Public Works Association, the National League of Cities, and others met with Jim Hanlon, EPA’s wastewater management office director and key staff on May 15, as part of a regular dialogue with the Agency on municipal issues.  Hanlon and his staff provided updates on several key rulemakings and initiatives, including the peak flows policy, the permit fee rule, and the whole effluent toxicity (WET) implementation guidance.  The peak flow policy continues to linger at the Office of Management and Budget (OMB), which has now had the policy for nearly two years.  While EPA has had several ‘conversations’ with OMB on the policy over the last few months, there has been little progress made on addressing the remaining issues.  Meeting participants asked whether a recent White House directive instructing federal agencies not to issue any new proposed rules after June 1 or final rules after November 1 in anticipation of the administration change, would have any impact on the blending issue.  Since the peak flows policy is not a formal rulemaking, it should not be impacted by the directive, but Hanlon was not optimistic that the policy would be finalized before the Bush Administration leaves office.

The permit fee rule, which would provide incentives to states to increase the fees they charge permittees, including municipalities, for obtaining a CWA permit, is now at OMB for review.  Though EPA received mostly negative comments, the Agency was directed in its FY 2008 budget to develop the rule and indicated during the meeting that the final version is ‘directionally the same as the proposal.’  Whole effluent toxicity issues are again receiving national attention and EPA staff provided an update on their work to finish the Agency’s WET implementation guidance (See related article below).

NACWA Meets With EPA on Whole Effluent Toxicity

NACWA together with industry representatives from the Federal Water Quality Coalition met with EPA June 9 to discuss several issues related to whole effluent toxicity (WET) and get an update on EPA’s work to finish its WET implementation guidance.  Proposed in 2004, the guidance generally received poor marks from all stakeholders as it severely undermined some of the more flexible implementation approaches being used by states.  No action has been taken since the close of the comment period on the guidance, but EPA has apparently been working to respond to some of the comments received on the 2004 proposed guidance and now is ‘piloting’ some new approaches to interpreting WET test results.  Chief among the new approaches is a modified South Carolina approach that relies on percent effect, something that NACWA has supported in the past.  How the South Carolina approach has been modified to meet EPA Headquarters’ needs is unclear, but EPA has now approved it and will be releasing the details soon.  EPA is also testing another methodology for interpreting WET test results, but so far has provided no details on that approach.  During the meeting EPA indicated that it would seek to re-propose the implementation guidance, rather than issue a final guidance based on the 2004 proposal, due to the significant comments received and changes they anticipate making.  EPA also indicated that they would prefer to issue policy statements or other ‘small fixes’ in the interim before a new implementation guidance is released.  Issues relating to the reasonable potential determination (i.e., deciding when a WET limit is needed) and what form a WET limit can take continue to be contentious issues.  NACWA and the FWQC are coordinating their efforts on this issue and will be working in the coming months to explore more flexibility on WET.  During a meeting in May with a NACWA member from Texas, EPA made it clear that permits in Region 6 that do not, by EPA’s July 1 deadline, include WET monitoring requirements or WET limits where reasonable potential exists would not receive EPA approval.  EPA is looking for both lethal and sublethal requirements and NACWA understands that thousands of permitees may ultimately be affected.  NACWA is working with its members in the region on these issues.

EPA Considers Options for Developing Emerging Contaminant Water Quality Criteria

EPA's Office of Water has developed a white paper describing technical issues in deriving aquatic life criteria for emerging contaminants and recommendations for developing such criteria.  The white paper uses a model endocrine disrupter to illustrate issues relevant to the process.  The Office of Water is now asking the Science Advisory Board (SAB) to comment on the scientific merit of the recommendations.  Details of a public teleconference and public meeting were released June 4 in the Federal Register.  The white paper is available on EPA’s Office of Water website at http://www.epa.gov/waterscience/criteria/aqlife.html.  NACWA will participate in the upcoming public meeting and keep the membership apprised of developments on this issue.