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» Update Archive
The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the March 2013 Regulatory Update. This Update provides a summary of relevant regulatory issues and actions current to the end of March 2013. Top Stories
Federal Appellate Court Issues Key Ruling on BlendingThe U.S. Court of Appeals for the Eighth Circuit issued a significant legal decision The municipal plaintiffs in the case alleged that EPA was impermissibly limiting the use of mixing zones and blending via de facto new regulatory requirements, but without going through the necessary procedural steps of notice and comment required for binding regulations. The court agreed with this argument and vacated EPA's actions to limit mixing zones and blending on procedural grounds. The court, however, took its analysis one step further and said that even if EPA's efforts to limit blending had properly gone through notice and comment, the Agency’s actions would still be illegal substantively under the CWA to the extent they are used to impose secondary regulations on flows within facilities. The court made clear that the CWA does not give EPA the statutory authority to apply effluent limitations to the discharge of flows from one internal treatment unit to another within the POTW. This ruling is a major blow to EPA’s inappropriate efforts to limit peak flow management options at POTWs by imposing secondary treatment effluent limitations within the boundaries of the plant. It provides utilities with important flexibility going forward in selecting peak flow management options, and confirms NACWA's position that EPA has been illegally regulating peak flow management approaches at POTWs via the secondary treatment and bypass regulations. The Association strongly believes peak flow treatment techniques play an integral role in helping utilities provide maximum treatment to wet weather flows and protecting water quality. NACWA commends the plaintiffs on a great win for the clean water community and looks forward to ensuring that any future EPA actions on peak flow treatment issues comply with the court’s directives. Although EPA’s reaction to the decision is not yet clear, it is possible that EPA will decide to appeal the decision on the standing issue and/or the substantive holdings in the case. The court decision will be discussed in more detail at NACWA’s upcoming National Environmental Policy Forum in April and NACWA will keep members updated of any developments. Contact: Nathan Gardner-Andrews at 202/833-3692 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .
NACWA Voices Concerns over Translation of Narrative Nutrient CriteriaNACWA wrote to Nancy Stoner, Acting Assistant Administrator for EPA’s Office of Water, on March 7 to express concerns over the Agency’s continued push to translate state narrative nutrient criteria into numeric permit limits for point sources. NACWA’s letter NACWA’s letter stressed that “[e]stablishing meaningful nutrient criteria and permit limits that are protective of designated uses has proven challenging…[and] to now presume that narrative nutrient criteria can simply be translated into numeric limits simply does not make sense, from either a policy or scientific standpoint.” NACWA has already met with EPA on this issue, and believes it was important to lay out the clean water community’s concerns in writing. The Association understands that EPA is interested in conducting training to help encourage states to use their narrative nutrient criteria to develop permit limits and is urging the Agency to initiate a formal guidance development process to provide for meaningful input if they intend to continue pursuing this policy. Contact: Chris Hornback at 202/833-9106 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .
EPA Water Technology Innovation Blueprint Highlights NACWA MembersOn March 27, EPA released a draft Water Technology Innovation Blueprint that highlights the importance of technology innovation in helping to achieve the goals of the CWA, and outlines the ways EPA plans to promote such innovation. The Office of Water identifies a number of market opportunities for innovative technology application in the document, including:
The Blueprint highlights examples of innovation from NACWA’s members, such as the Hampton Roads Sanitation District’s Struvite Recovery Facility, East Bay Municipal Utility District’s net-energy producing treatment plant, and the Emerald Coast Utilities Authority’s reuse of 100 percent of the nearly 20 million gallons per day (MGD) of flow at their Central Water Reclamation Facility. NACWA commends its many members who are involved in innovative projects, and would like to hear from you! NACWA has been asked by EPA to provide brief case studies of utility innovations to help the Agency determine future sites for planned EPA visits to highlight the importance of innovation nationwide – as well as to highlight in future remarks by Acting Assistant Administrator Office for Water, Nancy Stoner. If your utility is engaged in relevant projects in the areas listed above, we encourage you to submit a brief summary. An official copy of the Blueprint document is expected to be released by EPA shortly and NACWA will distribute to the membership when it is available. Contact: Brenna Mannion at 202/533.1839 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .
Air Quality
NACWA Participates in Continuing Siloxane NegotiationsNegotiations continued this week on an enforceable consent agreement (ECA) for environmental monitoring for two siloxanes, D4 and D5. The meeting included representatives from EPA, NACWA, and the Silicone Environmental Health and Safety Council of North America (SEHSC). NACWA is an interested party in the ECA negotiations because of the detrimental effects of siloxanes on the exhaust stages of boilers, engines, and other equipment when biogas is used as a renewable fuel by publicly owned treatment works (POTWs). At the meeting, the discussion focused on SEHSC’s proposal for sampling to occur at 10 POTWs to collect data for an environmental risk assessment. The 10 POTWs would include five without siloxane manufacturing or processing facilities discharging into the collection system and five with siloxane dischargers. SEHSC and EPA agree that monitoring of the influent, effluent, biosolids, and receiving waters should be included in the plan. EPA had previously suggested that 16 facilities be sampled. NACWA supported the plan for sampling at 10 POTWs, indicating that this should represent a sufficient cross-section of facilities, and requested that biogas be included in the sampling. EPA plans to complete negotiations by the end of April. Several NACWA members have indicated a willingness to participate in sampling when it begins, and EPA may consider volunteers when choosing sampling locations. Association members who may be interested in participating should get in touch with NACWA. Contact: Cynthia Finley at 202/533.1836 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .
Climate Change
NACWA Recommends Revisions to Greenhouse Gas InventoryNACWA submitted comments NACWA has commented on the six previous inventories, resulting in corrections and clarifications by the Agency. Because EPA did not make any substantive changes in this year’s inventory, NACWA’s comments reiterate those previously filed. The Association asked the Agency to clarify that the inventory should only be used for information purposes, and that industry-wide estimates are not always applicable for facility-level emissions calculations, such as those required in Clean Air Act permitting programs. In addition, NACWA recommended that EPA use a different methodology or nitrogen loading rate to calculate nitrous oxide emissions because loading rates collected by NACWA, and available in literature, are lower than those used by the Agency. The Association will evaluate any changes made in the final 2011 inventory and will continue to monitor all EPA actions on GHGs. Contact: Cynthia Finley at 202/533-1836 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .
EPA Staff
Kopocis Re-nominated for EPA Assistant Administrator for Water, Hill to Leave Wastewater Management OfficePresident Obama has again nominated Ken Kopocis to serve as EPA Assistant Administrator for Water. Kopocis was previously nominated for this position by Obama in June 2011 but his nomination was blocked by Republican Senators. Kopocis is currently serving as a senior policy adviser in EPA's Office of Water and NACWA has enjoyed a productive working relationship with him throughout his years of service in Congress and at EPA. Nancy Stoner will continue to serve as acting Assistant Administrator for the Office of Water until his nomination receives Senate confirmation. In a related development, Randy Hill, the current Acting Director of the Office of Wastewater Management (OWM), has accepted an appointment to EPA’s Environmental Appeals Board (EAB). He will be leaving OWM this month. EPA is currently in the process of seeking a permanent director for OWM to fill the spot left vacant by Jim Hanlon’s retirement. NACWA wishes Randy well in his new post with the EAB. Contact: Chris Hornback at 202/833-9106 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .
Financial Capability
NACWA Meets with Conference of Mayors, Water Sector Organizations to Discuss AffordabilityOn March 25, NACWA participated in a meeting with the U.S. Conference of Mayors (USCM), National League of Cities (NLC), National Association of Counties (NACo), Water Environment Federation (WEF), and several other water sector organizations to provide input into the ongoing dialogue with EPA on financial capability. The USCM initiated the current dialogue with EPA last fall to address ongoing concerns with the increasing Clean Water Act compliance costs being imposed on communities nationwide. The dialogue has so far led to EPA’s issuance of its January 18 memorandum outlining several areas where additional conversation is necessary. While EPA continues to rely on its 1997 guidance for assessing financial capability, the USCM is confident that EPA will at the very least issue guidance to provide clarification on what additional information can be considered when evaluating the financial capability of a community. The March 25 meeting was intended to provide the USCM with a better sense of the water sector organizations’ positions on a number of key issues that will be discussed during the dialogue. The USCM, NLC, and NACo and their elected official members will hold additional dialogue meetings with EPA over the coming months, after which the USCM expects to broaden the discussion to include the water sector organizations. NACWA plans to engage in this dialogue as appropriate, but will also be scheduling meetings with EPA to discuss the issue and to provide an overview of NACWA’s Targeted Action Fund project on financial capability, which is nearing completion. An initial draft of the new white paper was reviewed by the Money Matters Task Force in March and a final draft will be circulated in April. Contact: Chris Hornback at 202/833-9106 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .
Integrated Planning
NACWA Hosts Successful Region 7 Integrated Planning WorkshopNACWA is partnering with EPA, the Association of Clean Water Administrators (ACWA), and the Water Environment Federation (WEF) to offer a series of Integrated Planning (IP) workshops around the country. On March 12 more than 70 key stakeholders, including NACWA members, EPA staff, and state regulators, met for the Region 7 workshop in Olathe, Kansas. Iowa, Nebraska, Missouri, and Kansas are just beginning to put EPA’s IP framework to use, but attendees actively participated in a constructive discussion on getting started and on lessons learned from those already involved in the IP process. During the workshop, EPA explained that its IP framework was primarily about providing communities with greater flexibility in planning their clean water investments, and that the Agency’s role in the process was to assist the state regulators in getting plans off the ground. There was in-depth discussion on how to document stressors outside CWA obligations in the plan (e.g., Safe Drinking Water Act and Clean Air Act obligations, among others); the pros and cons of using a permit versus an enforcement mechanism to house the plan; and possible implications of the upcoming stormwater rule on plan development. Fluid communication between EPA, regulators and the utility, while engaging other stakeholders and educating public and local environmental groups, are all essential to Integrated Planning success. NACWA thanks all the attendees for their interest in the Region 7 workshop. At press time, NACWA held a workshop in Region 10, in conjunction with the Oregon Association of Clean Water Agencies (ORACWA) in Portland, Ore. NACWA also has scheduled a Region 5 workshop in Indianapolis, Ind., for May 1. NACWA encourages members in Region 5 that are interested in pursuing integrated plans to attend and register on NACWA’s website. A workshop in Region 8 is in the planning process, potentially for this June. Contact: Brenna Mannion at 202/533-1839 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .
NACWA Encourages EPA to Focus on Integrated Planning as Top 2014-2016 PriorityNACWA submitted a February 27 comment letter The letter expresses concern that EPA has again listed Accordingly, NACWA encourages EPA to reconsider making municipal wet weather issues its top enforcement priority, and instead urges the Agency to spend that time working directly with clean water utilities to help them effectively implement integrated plans. The letter suggests that by refocusing its efforts on integrated planning and maximizing compliance assurance efforts – as opposed to enforcement – EPA can avoid lengthy and often contentious negotiations over program requirements and instead facilitate ensuring that the best investments are being made now to improve water quality. Contact: Nathan Gardner-Andrews at 202/833-3692 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .
Meetings and Conferences
Get the Latest Regulatory and Legislative Information at NACWA’s 2013 Policy ForumNACWA’s National Environmental Policy Forum, April 21-24 in Washington, D.C., is the ideal setting to access the latest legislative, regulatory, and legal developments and meet federal policy makers in the Nation’s capital. Nancy Stoner, Acting Assistant Administrator for EPA’s Office of Water, is invited to speak at the Forum, along with other Office of Water division directors. In addition, EPA staff will be on hand for informal discussions during the Technical Roundtable session and key legislative speakers will be on hand to discuss Congressional efforts that could have significant regulatory impacts. A complete agenda, registration, and additional information is available on NACWA’s website. Be sure to make reservations at the Marriott Washington before the April 4 conference rate deadline!
Clearing the FOG at the NACWA Pretreatment & Pollution Prevention WorkshopSince fats, oils, and greases (FOG) continue to plague sewer systems across the country, a panel at the NACWA 2013 Pretreatment & Pollution Prevention Workshop, May 15-17 in Portland, Oregon, will focus on this persistent issue. In Clearing the FOG: Different Strategies for Different Sources, panelists will discuss the strategies used to reduce FOG from both domestic and commercial sources. Helen Cantril Dulac will give a presentation on the Dallas Water Utilities’ award-winning program to “Cease the Grease” program that encourages residents to recycle their grease and increase the energy produced at the wastewater treatment plant. Bob Baumgartner from Clean Water Services in Hillsboro, Oregon, will discuss how utilities worked with the Oregon State Plumbing Board on new FOG requirements for food service establishments, and how new education and outreach programs are being developed. Other topics that will be addressed at the Workshop include stormwater management by pretreatment programs, preventing inappropriate flushing of wipes and other products, and potential new rules for unused pharmaceutical disposal. A complete agenda for the Workshop – as well as registration, hotel, and travel information – are available on NACWA’s website. The group rate of $155 per night at the DoubleTree by Hilton Portland is available until Tuesday, April 23, and reservations may be made by calling the hotel at 503/281-6111 or by visiting the hotel website.
Security and Emergency Preparedness
Water Sector Coordinating Council Workgroup Discusses Future Security PrioritiesA joint workgroup of the Water Sector Coordinating Council (WSCC) and Government Coordinating Council (GCC) met on March 20 to revise the Roadmap to a Secure & Resilient Water Sector, a 2009 document that defined the priorities for improving security, emergency preparedness, and resiliency for drinking water and wastewater utilities. The 2009 Roadmap was used by EPA to determine the projects that its Water Security Division (WSD) would pursue over the last three years. NACWA’s representatives to the WSCC, Patty Cleveland, Assistant Regional Manager, Northern Region, of the Trinity River Authority, TX and a NACWA Board member, and Jim Davidson, Manager of Safety & Security with the Northeast Ohio Regional Sewer District, OH, are both members of the workgroup and attended this week’s meeting. The workgroup agreed that natural disasters, aging infrastructure, and cybersecurity are the top risks for the water sector and improving preparedness and response to these risks need to be prioritized. The workgroup discussed ideas for how EPA, the Department of Homeland Security (DHS), and state regulatory agencies can work with water sector utilities to better respond to these threats. In future meetings, the workgroup will be discussing specific projects that can be used to achieve these response goals. The end result will be a report that will be used by EPA in the coming years to help determine the WSD’s work plan and budget requirements. Contact: Cynthia Finley at 202/533-1836 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .
Stormwater
EPA Declines Appeal of Stormwater Flow TMDL RulingEPA announced March 1 that it would not appeal a January federal court ruling EPA has also withdrawn a similarly contested flow-based stormwater TMDL in Missouri. Taken together with the Agency’s decision not to appeal the recent court case, these actions suggest that EPA has backed off attempts to develop federal flow TMDLs for stormwater. The Virginia legal ruling, however, does not impact the ability of individual states to use flow TMDLs. It is likely that this ongoing battle will simply shift to the state level where similar stormwater TMDLs will be developed under state authority. NACWA will continue to track developments and advocate on this issue on behalf of its members. Contact: Brenna Mannion at 202/533-1839 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .
Water Quality
NACWA Meets with NRDC about TriclosanNACWA met with the Natural Resources Defense Council (NRDC) on March 21 to discuss strategies for reducing the amount of triclosan that is used in consumer products and ultimately discharged into the sewer system. Triclosan is used as an antibacterial agent in a wide variety of consumer products, including soaps, toothpaste, detergents, and other cleaning products. It is persistent in the environment and provides little or no health benefits, (e.g., using antibacterial soap for handwashing has been shown to be no more effective than using regular soap). NRDC previously attempted to sue the Food and Drug Administration (FDA) over its failure to regulate triclosan, and had the case thrown out due to lack of standing, but the 2nd U.S. Circuit of Appeals reinstated the lawsuit on March 15. NRDC will keep NACWA informed about the progress of this case and any ways that the Association might be able to assist. NRDC and NACWA discussed other ways to collaborate to bring more attention to this issue, including a presentation by NRDC at the 2013 NACWA Pretreatment & Pollution Prevention Workshop, encouraging NACWA members to develop procurement procedures for triclosan-free products with their local governments, and meeting with other groups to form strategies for convincing manufacturers and retailers to reduce or eliminate triclosan-containing products. NACWA members with an interest in this issue should contact NACWA Contact: Cynthia Finley at 202/533-1836 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .
NACWA Meets with EPA to Discuss TMDL Vision Document, State Integrated ReportingNACWA, together with the Federal Water Quality Coalition (FWQC), participated in a meeting March 29 to discuss a vision document for the total maximum daily load (TMDL) program jointly developed by EPA and the Association of Clean Water Administrators. EPA views the vision document as an important roadmap for how the TMDL program will proceed in the future now that it is largely out from underneath the lawsuits and legal deadlines that had been driving the program for more than a decade. EPA and the states have been discussing how to evaluate and prioritize waters for TMDL development and sought comment on an earlier version of the vision document last year. During the meeting a number of concerns with the original vision document were outlined for EPA. The Agency plans to release another version of the vision document later this year for comment. EPA also provided an update on its forthcoming integrated reporting memorandum, which it issues approximately a year in advance of the deadline for states to submit their 305(b) and 303(d) lists to EPA. Among other issues, EPA’s memorandum will emphasize the importance of using existing narrative nutrient criteria to evaluate water quality and determine impairments. The integrated reporting memorandum will be sent to states in the next month or two. Contact: Chris Hornback at 202/833-9106 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .
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on March 25 when it struck down U.S. Environmental Protection Agency (EPA) efforts to improperly regulate peak wet weather flow management techniques at publicly owned treatment works (POTWs). The decision also struck down certain EPA efforts to illegally regulate mixing zones. In making its decision, the court found that the Clean Water Act’s (CWA) secondary treatment effluent limitations apply only at the final point of discharge, not within a POTW’s internal treatment processes. This ruling is an important step forward for utilities using a variety of peak flow management techniques, especially those with parallel peak flow treatment trains, and marks a notable legal victory.