The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the May 2008 Regulatory Update.  This Update provides a narrative summary of relevant regulatory issues and actions current to May 15, 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 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 Sponsors Meeting on Safe and Sustainable Consumer Products

NACWA convened a meeting on May 7-8 to continue the National Dialogue on Safe and Sustainable Consumer Products that the Association began with other organizations last May.  The dialogue was established to address concerns by NACWA members and other stakeholders over the growing number of consumer products with ingredients or additives that may end up in the sewer system and eventually be released into the environment.  These types of products include soaps containing triclosan, washing machines that discharge silver ions, and fabrics impregnated with copper or permethrin.  Through the dialogue, NACWA and other stakeholders will develop strategies for reducing the use of these additives and decrease the amount that ends up in the nation’s waters.  A series of letters from NACWA and other groups led to EPA’s September 2007 decision to regulate devices that produce silver ions, such as washing machines, and NACWA hopes that the dialogue partners will find similar ways to work together and achieve national results.

Leaders of NACWA’s Water Quality Committee, Pretreatment and Pollution Prevention Committee, and Mercury Workgroup attended the meeting this week, along with representatives from other environmental organizations and staff from two associations representing retailers and manufacturers.  Representatives from EPA’s Office of Pollution Prevention and Toxics, Office of Water’s Office of Science and Technology, and Office of Pesticide Programs also attended the meeting to provide information and offer their perspectives on the regulations that apply to consumer products and additives to the products.  During the meeting, a working group was established to explore the issue of triclosan in soaps and other personal care products and to investigate potential actions for reducing the use of triclosan.  Although the triclosan issue will serve as a “pilot” for collaboration by the dialogue participants, other consumer product issues and additives will also continue to be explored through the dialogue.

Pharmaceuticals in Water is a Top NACWA Focus
While pharmaceutical issues are not being specifically addressed in this dialogue, several NACWA members that were in town for the consumer products meeting had the opportunity to brief key Capitol Hill staff on the issue of pharmaceuticals and community take-back programs.  No formal plans have been made yet, but there is interest among House staff on potentially holding a hearing, similar to the April 15 hearing in the Senate, on pharmaceuticals in water.  NACWA will keep its members informed about the progress made on the consumer products dialogue and the pharmaceutical issue.

Air Quality and Climate Change

NACWA Meets with EPA and Prepares Comments on Climate Change Strategy

NACWA met with Ben Grumbles, EPA assistant administrator for water, on April 29 at the Agency’s National Association Outreach Meeting, where he discussed the draft National Water Program Strategy: Response to Climate Change.  The Draft Strategy represents EPA’s “initial effort to evaluate how best to meet our clean water and safe drinking water goals in the context of a changing climate”  and contains 46 “Key Actions” that the Office of Water will undertake in the next two years to address climate change impacts to water resources and water sector utilities.  A detailed summary of the Draft Strategy is contained in NACWA’s Regulatory Alert 08-02.

At the April 29 meeting, Grumbles stated that EPA is interested in suggestions for longer-term actions to address the water management-climate change nexus, although the Draft Strategy only contained short-term actions.  He also said that EPA recognizes that Agency policies should consider the impact of new requirements on the municipal carbon footprint, including the increased energy requirements of more stringent wastewater treatment, but EPA still has statutory requirements that it must meet and often has limited flexibility with these requirements.  NACWA will address these issues in its public comments on the Strategy, which will be submitted by the May 27 deadline.  NACWA will also be meeting with Mike Shapiro, deputy assistant administrator for water, and other EPA staff on May 16 to further discuss the Draft Strategy.

In a related matter, the water sector associations have nearly completed a joint message about the impacts of climate change to clean water, drinking water, and stormwater infrastructure.  This unified message will aid in NACWA’s advocacy efforts, which are focused on helping legislators and other policymakers understand that climate change is primarily a water issue, and that adaptation strategies will require more federal funding.   The Senate is planning to vote in June on the Lieberman-Warner Climate Security Act of 2008 (S. 2191), which uses a cap-and-trade program to reduce current emissions by approximately 15 percent by 2020 and 60 percent by 2050.  Publicly owned treatment works (POTWs) fall well below the greenhouse gas emissions limit of 10,000 carbon equivalents per year, which is the regulatory trigger under the bill, but the Association’s view is that POTWs can still reduce their carbon footprint and should therefore be eligible under other provisions in the legislation to receive federal funds for adaption and mitigation efforts.  The water sector message is expected to be released next week.  NACWA is also sending a letter to Sen. Barbara Boxer (D-Calif.), chair of the Senate Environment and Public Works (EPW) Committee, urging the Senate to add adaptation and mitigation funding provisions for POTWs to S. 2191.

Biosolids

NACWA, WEF Send Letter Supporting Biosolids Use on Land, Balanced Panel in Hearing -

NACWA and the Water Environment Federation (WEF) sent a letter on May 2 to Sen. Barbara Boxer (D-Calif.), chair of the Senate EPW Committee, urging her to invite a municipal witness with expertise in the management of biosolids to testify at a possible upcoming oversight hearing on the use of biosolids as a fertilizer.  Last fall, Boxer requested information from EPA about its biosolids management program.  Since that time, a series of Associated Press and other articles have run in the media questioning the safety of land application of biosolids.  NACWA and WEF want to ensure that the municipal perspective on the safety and benefits of land application of biosolids is prominently articulated in any upcoming hearing.  The letter pointed out that “thousands of local governments throughout the United States, including the state of California, rely on land application for environmentally beneficial management of biosolids.”

NACWA President Chris Westhoff, assistant city attorney and public works general counsel for Los Angeles, was recommended as a witness for the hearing.  The letter pointed out that Californians generate 750,000 tons of biosolids annually and that more than 60 percent is land applied.

During the National Clean Water Policy Forum, NACWA met with both Democratic and Republican staff members of the Senate Environment and Public Works (EPW) Committee in separate meetings to urge their support for biosolids management programs.  Majority staff was receptive to the important information NACWA provided regarding the safety of land application and the effectiveness of EPA’s Part 503 regulations, which govern biosolids management.  Three NACWA public agency members from California briefed majority staff on the importance of land application to the nation’s clean water agencies, and the critical role it plays in California.  The committee’s minority staff, during a separate meeting, expressed an interest in inviting Chris Westhoff to testify if the Democrats do not.  NACWA is now working to collect additional information on pollutant loadings in biosolids and incident response protocols requested by the committee staff during the meetings.

Conferences and Meetings

Plan Now to Attend NACWA’s Summer Conference, Annual Meeting in Alaska

Registration is now available for NACWA’s 2008 Summer Conference, The Future of Clean Water is Now!  How Next Generation Issues Are Impacting Utilities Today, & 38th Annual Meeting.  Join your colleagues in Anchorage, Alaska, July 15-18, for this very timely conference that will explore the next generation of clean water challenges and how to address them.  With 35 years of Clean Water Act (CWA) regulation in place, municipalities now must consider their current challenges in the context of new and more global issues, many of which are simply beyond what the CWA’s architects envisioned.  NACWA’s Summer Conference will explore how these ‘next-gen’ challenges will affect current efforts and highlight a new framework that one day may replace the CWA.

NACWA’s room block at the Hilton Anchorage is currently sold out.  Because this situation may change, please try initially to secure reservations at the Hilton Anchorage (907/272-7411).  If they are unable to accommodate you, NACWA has arranged for a small block of rooms at the Anchorage Marriott Downtown, a short walk away.  The Marriott is offering a rate of $219 per night (single/double) plus applicable taxes (phone: 907/279-8000; address: 820 West 7th Avenue).

Facility and Collection Systems

EPA Clarifies Wet Weather Enforcement Initiatives in Response to NACWA Request

NACWA received a letter on April 30 from EPA’s Office of Enforcement and Compliance Assurance (OECA) in response to the Association’s April 4 inquiry about a potential new wet weather enforcement initiative affecting combined sewer overflows (CSOs) and sanitary sewer overflows (SSOs).  NACWA had requested clarification on the current guidance to the EPA regional offices after the Association heard reports from municipal utilities and state regulatory agencies in Regions V and VI that EPA officials had recently discussed a “new enforcement initiative” from EPA Headquarters on wet weather issues, particularly CSOs and SSOs.  EPA stated that there is no new initiative, but that CSOs and SSOs continue to be a “national enforcement priority area.”  EPA designated CSOs and SSOs as enforcement priorities for fiscal years 2005 through 2007, then renewed these priorities for fiscal years 2008 through 2010.  OECA’s response indicates that EPA’s April 2005 memorandum on Guidelines for Federal Enforcement in CSO/SSO Cases continues to be the most recent guidance to states and regional offices and that there have been no recent updates or revisions to that guidance.  NACWA will continue to track wet weather enforcement trends around the country and report to the membership on any important developments.

NACWA Sends Letter of Support for Revised Sewer Overflow Notification Bill

NACWA sent a letter to the House Transportation and Infrastructure (T&I) Committee on April 16 expressing its support for the Raw Sewage Community Right-to-Know Act (H.R. 2452), which would set national standards for monitoring and reporting sewer overflows.  NACWA worked with American Rivers, the main supporter of the bill, and committee staff to rework language in the proposed legislation and address the concerns of its member utilities.  Among other things, the title will be changed to the less inflammatory Sewage Overflow Community Right-to-Know Act.  Although NACWA did not get all of the changes it sought during the negotiations with American Rivers, the Association’s Board of Directors still decided to support the bill.  NACWA’s letter to the T&I Committee also pointed out that “the Association continues to believe that the reporting and notification requirements would be best addressed through a comprehensive sanitary sewer overflow (SSO) rule rather than a piecemeal approach, and we hope to work with you toward this overall goal.”  While the bill is not expected to pass this year, NACWA expects that it could be a priority item in the next Congress.

EPA to Host Webcast on Combined Sewer Overflow Long Term Control Plans

EPA is hosting a webcast on May 28 that will focus on the nine elements of a combined sewer overflow (CSO) Long Term Control Plan (LTCP).  Speakers for the webcast include EPA staff and private consultants.  Advance registration for the webcast is required, but there is no cost to register.  Registration and more information is available on EPA’s website.

Utility Management

NACWA Meets with EPA Water Office Chief on Utility Management

The executive directors and key staff from the six organizations, including NACWA, that are participating in the Effective Utility Management Collaborative Effort met on April 30 with Ben Grumbles, EPA assistant administrator for water, to discuss the significant progress made since the groups signed a historic agreement in May 2007.  Joining NACWA at the meeting were the American Public Works Association (APWA), the American Water Works Association (AWWA), the Association of Metropolitan Water Agencies (AMWA), the National Association of Water Companies (NAWC), and the Water Environment Federation (WEF).  The groups have been working with EPA over the past year to implement a set of short- and long-term actions identified by the steering committee of utility representatives that developed the 10 attributes of effectively managed utilities.  Together with some representatives from the initial steering committee, the collaborating organizations have worked to develop a primer on the 10 attributes and a set of example measures that utilities can use to assess their own agency’s performance.

Concurrent with the primer project, NACWA has been leading an effort to develop an online toolbox that will supplement the information in the primer and provide utilities with a comprehensive list of resources from the collaborating groups organized according to the 10 attributes.  The meeting with Grumbles focused on what can be done in the coming years to continue this effort and encourage more utilities to embrace the concepts in the 10 attributes.  NACWA has already modified its Excellence in Management Awards program to closely track with the 10 attributes and will be working with its partner organizations to find more ways to integrate them into their respective members’ operations.

Financial Survey Submittal Deadline Extended!

NACWA has extended the deadline for utilities to submit their 2008 Financial Survey until May 23.  We understand that many utilities are still closing out their financial records for the previous year and need time to collect the necessary information to complete the survey.  Please contact Chris Hornback at This e-mail address is being protected from spambots. You need JavaScript enabled to view it if you need a copy of your agency’s customized survey form or would like to discuss your agency’s survey response.

Water Quality

New Handbook on Watershed Planning Now Available

EPA's Office of Wetlands, Oceans, and Watersheds has released a new document, the Handbook for Developing Watershed Plans to Restore and Protect Our Waters, which is designed to help communities, watershed organizations, water and wastewater utilities, and local, state, tribal, and federal environmental agencies develop and implement watershed plans to meet water quality standards and protect water resources.  It contains in-depth guidance on quantifying existing pollutant loads, developing estimates of the load reductions required to meet water quality standards, developing effective management measures, and tracking progress once the plan is implemented.  The document is available on EPA’s website.

Court Grants NACWA Favorable Ruling in BEACH Act Case

NACWA received a favorable court ruling on April 7 when an appeals court concluded that it has the authority to order EPA to engage in specific studies in developing new recreational water quality criteria.  The decision came in the ongoing litigation surrounding the Beaches Environmental Assessment and Coastal Health (BEACH) Act of 2000.  The order from the U.S. District Court for the Central District of California, in Natural Resources Defense Council (NRDC) v. EPA, also noted that EPA must conduct the studies “after consultation with and in cooperation with” local officials, echoing arguments made by NACWA at a March 24 hearing that the studies be developed and implemented with stakeholder input.  The decision marks an important milestone in the litigation, which was initiated in 2006 by NRDC after EPA failed to meet the deadlines under the BEACH Act requiring it to conduct studies and develop new recreational water quality criteria.  NACWA intervened in the case to ensure that the interests of the clean water community are represented and that the new criteria are scientifically based.

EPA argued that the court only had the authority to set a deadline for completing the required recreational water studies but could not tell the Agency how to conduct the studies.  NACWA and the other plaintiffs contended that the court should not only establish a deadline but also direct EPA to conduct specific studies to ensure compliance with the BEACH Act statute.  The court’s ruling embraces the arguments of NACWA and the other plaintiffs.  The order further directs the parties to prepare for a trial in late July at which time each side will have the opportunity to present evidence on what specific studies EPA should be ordered to complete.  NACWA is actively preparing for trial and will report to the membership on any developments.

NACWA, Dental Association Explore Best Management Practices for Mercury Waste

NACWA and representatives from the American Dental Association (ADA) met with EPA’s effluent guidelines office on April 22 to explore the possibility of using the ADA’s best management practices for mercury amalgam waste as the basis for a national program to encourage broader use of the practices by dental offices.  The ADA added the use of amalgam separators to its best practices document last fall and has developed several resources to help dentists understand why the devices are important to protecting water quality.  Many of NACWA’s members have developed local programs requiring the installation of separators or have used voluntary approaches in an effort to control mercury from dental clinics, which can contribute as much as half of the influent mercury to a POTW.  A national set of best practices could dramatically increase the use of separators and decrease discharges of mercury to POTWs.

EPA is currently looking at the discharge of mercury from dental clinics to determine whether national pretreatment standards are necessary, but seems poised to conclude that they are not.  The Agency is considering a possible collaboration with NACWA and ADA on the best practices as an alternative to a pretreatment standard.  Many details still need to be worked out; paramount among them is ensuring that clean water agencies will retain the authority to regulate dentists in any manner deemed necessary to meet their requirements under the Clean Water Act.  NACWA’s Mercury Workgroup will continue to work with EPA and the ADA to explore this possible collaboration.

OMB Approves Proposed Water Transfer Rule; Could be Released this Month

NACWA recently learned that the Office of Management and Budget (OMB) has approved EPA’s proposed water transfer rule, clearing the way for it to be officially released by the Agency sometime in May.  The long-awaited rule would clarify that interbasin transfers of natural, untreated water do not require a National Pollutant Discharge Elimination System (NPDES) permit.  NACWA commented on the draft version of the rule when it was released in June 2006, expressing support for EPA’s decision to exempt these kinds of transfers from permitting requirements, and has met with officials at EPA, OMB, and other government agencies over the past months to push for final approval of the rule.  NACWA has also advocated against permits for interbasin water transfers in a number of recent litigation matters including South Florida Water Management District v. Miccosukee Indian Tribe before the U.S. Supreme Court and Friends of the Everglades v. South Florida Water Management District, currently before the Eleventh Circuit Court of Appeals.  NACWA will continue to monitor developments regarding this issue and alert the membership when the final rule is released.

NACWA Supports Massachusetts Members in Hill Meeting on Clean Water Permitting

NACWA joined members of the Massachusetts Coalition for Water Resources Stewardship on April 9 in a meeting with members of the Massachusetts congressional delegation and representatives from EPA Region I.  The discussion at the U.S. Capitol focused on the coalition’s concerns about Clean Water Act permits.  The meeting was prompted by a white paper prepared by the coalition highlighting flaws in the way permit requirements are currently developed and imposed on Massachusetts wastewater utilities.  The concerns of the coalition closely track the recommendations – including the primary recommendation that a more holistic watershed approach is needed to address water quality – that were identified by NACWA’s Strategic Watershed Task Force in its Recommendations for a Viable and Vital 21st Century Clean Water Policy report released in October 2007.

At issue during the April 9 meeting was whether particular permit requirements or infrastructure investments make sense from a broader watershed and community perspective, a consideration that transcends the Clean Water Act’s current reliance on water quality standards.  During the meeting, Robert Varney, the EPA Region I administrator, was questioned by the Massachusetts delegation on the lack of thorough cost-benefit analyses in the Clean Water Act permitting process and on EPA’s methodology for determining whether a particular mandate is affordable for a particular community.  Varney was also questioned about EPA’s reduced federal investment in the Clean Water State Revolving Loan Fund (CWSRF).

Several mayors and top utility officials from a number of Massachusetts communities provided their perspectives at the meeting, citing doubling and tripling of sewer rates in their communities over the last few years.  The concerns expressed during the meeting were certainly not unique to Massachusetts, and EPA’s lack of flexibility to consider cost-benefit and affordability considerations in its rulemaking process stems not only from established EPA policy, but more directly from the Clean Water Act itself.  NACWA will closely follow the efforts of the Massachusetts Coalition as it meets with EPA Region I over the next six months on this issue and will continue to work nationally to highlight the need for a watershed approach to meet clean water challenges.